Opinion
5:20-CV-00013-TES-MSH
03-31-2021
AHMAD RAHEEM DUNBAR, Plaintiff, v. JOHN AND OR JANE DOES, et al., Defendants.
REPORT AND RECOMMENDATION
STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE
Plaintiff has filed a complaint (ECF No. 1) seeking relief pursuant to 42 U.S.C. § 1983. Pending before the Court is Defendant Jester's motion to dismiss (ECF No. 18). For the hereinbelow reasons, the Court recommends that Defendant's motion be granted and that Plaintiff's complaint be dismissed.
BACKGROUND
Plaintiff's claims arise from his confinement at Georgia Diagnostic and Classification Prison (“GDCP”). According to Plaintiff, on July 24, 2018, Correctional Emergency Response Team (“CERT”) officers surrounded him as he walked to his cell and asked where he was coming from and why. Compl. 4, ECF No. 1. A CERT officer threw Plaintiff against a wall and took his glasses. Id. While Plaintiff faced the wall, the officer again asked Plaintiff where he was coming from. Id. Before Plaintiff could answer, the officer hit him in the back of the head, which caused Plaintiff's head to bounce off the wall, resulting in a split lip and chipped tooth. Id. Plaintiff was struck “several more times, thrown to the floor, hit and kicked more, ” stood up, and thrown against the wall again. Id. Officers also made sexual comments during the altercation. Id. at 5. One officer attempted to intervene, but CERT officers ignored her, and one officer stole Plaintiff's watch. Compl. 5. Plaintiff attempted to walk away, but a CERT officer told him to come get his glasses, and when Plaintiff approached, he “was hit several more times after receiving [his] glasses.” Plaintiff then returned to his housing unit, but he never received his stolen watch. Id.
After the incident, Plaintiff filed a prison incident report, claiming that the CERT officers violated the Prison Rape Elimination Act (“PREA”), and photos were taken concerning the incident. Id. Defendant Teketa Jester responded to Plaintiff's PREA incident report and took his property sheet which noted that he owned a watch, but he never received his watch. Id. Plaintiff's “PREA allegation was ruled nonexistent, ” and Defendant Jester placed him in administrative segregation and ordered Plaintiff “to do the remainder of [his] time” in administrative segregation. Id. Plaintiff claims these incidents violated his constitutional rights, and he requests $300,000 in punitive damages and $25,000 in compensatory damages. Id.
The U.S. District Court for the Northern District of Georgia received Plaintiff's complaint (ECF No. 1) on December 23, 2019. On January 8, 2020, the Northern District of Georgia transferred the case to this Court. Order 1-2, ECF No. 3. On July 13, 2020, the Court conducted preliminary review of Plaintiff's complaint, found that Plaintiff stated claims against Defendant Jester for excessive force in violation of the Eighth Amendment and retaliation in violation of the First Amendment, dismissed all other claims, and ordered 2 service. Order & R. 3-12, ECF No. 7; Order 1-2, Aug. 3, 2020, ECF No. 10. Defendant Jester filed her motion to dismiss (ECF No. 18) on November 24, 2020. The Court notified Plaintiff of his right to respond to Defendant's motion and ordered him to file any response within thirty days. Order 1-2, Jan. 21, 2021, ECF No. 20. Plaintiff failed to respond. On March 11, 2021, the Court ordered Plaintiff to show cause and respond to Defendant's motion to dismiss, and Plaintiff again failed to respond. Order 1-3, ECF No. 23. Defendant's motion is ripe for review.
DISCUSSION
Defendant argues Plaintiff's complaint should be dismissed on five grounds: (1) Plaintiff has failed to prosecute this action, (2) the Eleventh Amendment bars Plaintiff's claims against Defendant in her official capacity, (3) Plaintiff is not entitled to compensatory or punitive damages, (4) Plaintiff fails to state a claim for excessive force, and (5) Defendant is entitled to qualified immunity as to Plaintiff's excessive force claim. Br. in Supp. of Mot. to Dismiss 3-12, ECF No. 18-1. The Court recommends that Defendant's motion be granted on her first and second grounds and declines to address the three remaining grounds.
I. Standard of Review
When considering a 12(b)(6) motion to dismiss, the Court must accept as true all facts set forth in the plaintiff's complaint and limit its consideration to the pleadings and exhibits attached thereto. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007); Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 3 ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). The complaint must include sufficient factual allegations “to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. “[A] formulaic recitation of the elements of a cause of action will not do[.]” Id. Although the complaint must contain factual allegations that “raise a reasonable expectation that discovery will reveal evidence of” the plaintiff's claims, id. at 556, “Rule 12(b)(6) does not permit dismissal of a well-pleaded complaint simply because ‘it strikes a savvy judge that actual proof of those facts is improbable.'” Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007) (quoting Twombly, 550 U.S. at 556).
II. Failure to Prosecute
Defendant argues Plaintiff's complaint should be dismissed because he has failed to prosecute his case and abide by the Court's orders. Br. in Supp. of Mot. to Dismiss 3-6. The Court agrees and recommends that Plaintiff's complaint be dismissed on this ground.
“The district court possesses the inherent power to police its docket.” Collins v. Lake Helen, L.P., 249 Fed.Appx. 116, 120 (11th Cir. 2007) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 629-30 (1962)). “Rule 41(b) [of the Federal Rules of Civil Procedure] authorizes a district court to dismiss a complaint for failure to prosecute or failure to comply with a court order or the federal rules.” See, e.g., Gratton v. Great Am. Commc'ns, 178 F.3d 1373, 1374 (11th Cir. 1999). Under Rule 41(b), a court may dismiss a plaintiff's claim sua sponte, or “a defendant may move to dismiss the action or any claim against it” for a plaintiff's failure to prosecute or comply.
“Dismissal of a case . . . is considered a sanction of last resort, applicable only in extreme circumstances.” Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985). “Dismissal under [Rule 37 and 41], while an extreme sanction, is appropriate where a party engages in a clear pattern of delay or willful contempt (contumacious conduct); and the district court specifically finds that lesser sanctions would not suffice.” Pippen v. Georgia-Pacific Gypsum, LLC, 408 Fed.Appx. 299, 303 (11th Cir. 2011) (internal quotation marks and citation omitted). “Although it must find that lesser sanctions would not suffice to remedy the inappropriate conduct, the district court's finding can be explicit or implicit.” Collins, 249 Fed.Appx. at 120 (citations omitted).
Defendant moves to dismiss under Rule 41(b) because Plaintiff failed to advise the Court of his address change. Br. in Supp. of Mot. to Dismiss 5-6. On July 13, 2020, as part of its Order and Recommendation (“O&R”) preliminarily reviewing Plaintiff's complaint, the Court ordered that “[d]uring the pendency of this action, all parties shall keep the Clerk of this Court and all opposing attorneys and/or parties advised of their current address.” Order 12, ECF No. 7. The Court warned the parties that “[f]ailure to promptly advise the Clerk of a change of address may result in the dismissal of a party's pleadings.” Id. When Plaintiff filed his complaint, he was confined at GDCP in Jackson, Georgia. See Compl. 3, 6. When the Clerk attempted to serve Plaintiff by mail with a copy of the Court's July 13, 2020, O&R, the mail was returned as undeliverable because Plaintiff was no longer confined at that address. See Mail Return, ECF No. 11. Plaintiff failed to provide an updated address in accordance with the Court's July 13, 2020, Order. Subsequent mail sent to Plaintiff similarly has been returned as undeliverable. See Mail 5 Return, ECF No. 12; Mail Return, ECF No. 17; Mail Return, ECF No. 22.
In her motion to dismiss, Defendant states that Plaintiff is now confined at Dooly State Prison (“DSP”) in Unadilla, Georgia. Br. in Supp. of Mot. to Dismiss 5 n.1; see also Mot. to Dismiss Ex. A, at 2-3, ECF No. 18-2. Plaintiff remains confined at DSP. See http://www.dcor.state.ga.us/GDC/Offender/Query (searched Dunbar, Ahmad) (last accessed Mar. 11, 2021). Defendant attempted to serve Plaintiff with her motion to dismiss at both GDCP and DSP. Br. in Supp. of Mot. to Dismiss 5 n.1. On January 21, 2021, the Court notified Plaintiff of Defendant's motion to dismiss and ordered him to respond within twenty-one days. Order 1-4, ECF No. 20. Upon the Clerk's attempt to perfect service upon Plaintiff by mail, the Order was again returned as undeliverable. See Mail Return, ECF No. 22. Plaintiff has failed to file any response or request for extension of time. On March 11, 2021, the Court ordered Plaintiff to show cause why his case should not be dismissed under Rule 41(b) for failure to comply with the Court's July 13, 2020, O&R which required Plaintiff to advise the Court of any address change. Order 3, ECF No. 23. The Court informed Plaintiff that Defendant had moved to dismiss on this ground, afforded Plaintiff another twenty-one days in which to respond, and again warned Plaintiff his complaint would be dismissed if he failed to comply. Id. at 1-3. In an abundance of caution, the Court also sent copies of this Order to both GDCP and DSP. Plaintiff again failed to respond.
Plaintiff has not filed any documents with the Court since his case was transferred to this Court on January 8, 2020. He has not advised the Court of his address change, and mail sent to him has been returned as undeliverable. Therefore, Plaintiff has failed to 6 comply with the Court's July 13, 2020, Order to update his address and the Court's March 11, 2021, Order to show cause. The failure to comply with the Court's order to advise of an address change is grounds for dismissal under Rule 41(b). See, e.g., Davis v. Hamrick, No. 4:18-cv-255-CDL-MSH, R. & R. 2-5 (M.D. Ga. Sept. 26, 2019), ECF No. 20, recommendation adopted by Order 1 (M.D. Ga. Oct. 25, 2019), ECF No. 22 (dismissing a pro se prisoner plaintiff's § 1983 complaint under Rule 41(b) where plaintiff failed to advise the Court of his address change and his mail was returned as undeliverable); Hollis v. Paulk, No. 7:07-CV-97-HL, 2010 WL 2331971, at *1 (M.D. Ga. May 17, 2010), report and recommendation adopted by 2010 WL 2331458 (M.D. Ga. June 8, 2010) (same).
The Court finds that Plaintiff has engaged in a pattern of willful contempt by failing to comply with the Court's multiple orders and failing to prosecute this action. The Court has considered lesser sanctions under Rule 41. Here, however, lesser sanctions would not suffice because the Court is unable to communicate with Plaintiff, and Defendant faces delays and the inability to conduct discovery. Moreover, Plaintiff has not contested Defendant's motion to dismiss, including her argument that his complaint should be dismissed under Rule 41(b). Based on Plaintiff's failure to contest dismissal on this ground and in order to prevent delay and unfair prejudice to Defendant, the Court RECOMMENDS that Defendant's motion to dismiss be GRANTED on this ground and that Plaintiff's complaint (ECF No. 1) be DISMISSED.
III. Official Capacity Claims
Defendant argues that to the extent Plaintiff seeks to raise claims for damages against Defendant in her official capacity, his claims must be dismissed because they are 7 barred by the Eleventh Amendment. Br. in Supp. of Mot. to Dismiss. J. 6-7. The Court agrees and, in the alternative, recommends that Plaintiff's claims against Defendant in her official capacity be dismissed.
Defendant is an employee of the Georgia Department of Corrections (“GDC”). GDC employees are entitled to Eleventh Amendment immunity for claims against them in their official capacities. “Official capacity suits for damages against employees of a state agency are suits against the state agency.” Ferguson v. Ga. Dep't of Corr., 428 F.Supp.2d 1339, 1352 (M.D. Ga. 2006). “A suit against a governmental entity which is considered an ‘arm of the state'-such as the GDOC-is a suit against the State.” Id. (citing Will v. Mich. Dep't of State Police, 491 U.S. 58, 70 (1989)). “[T]he Eleventh Amendment to the United States Constitution bars a § 1983 action against the State of Georgia and the GDC unless the State either consents to suit or waives its sovereign immunity with regard to § 1983 claims-neither of which has happened here.” Ferguson, 428 F.Supp.2d at 1352. Plaintiff's claims against Defendant in her official capacity for monetary damages is barred by the Eleventh Amendment, and Plaintiff cannot recover monetary damages against Defendant in her official capacity.
Additionally, GDC employees, as state officials acting in their official capacities, are not considered “persons” for purposes of § 1983. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989); see also Ferguson, 428 F.Supp.2d at 1352-53. Since § 1983 requires that a “person” deprive a plaintiff of his constitutional rights, the lack of a “person” in this case establishes an independent ground for the denial of Plaintiff's claims. Will, 491 U.S. at 71. Therefore, to the extent Plaintiff's complaint is not dismissed under Rule 8 41(b), the Court RECOMMENDS, in the alternative, that Defendant's motion to dismiss be granted on this ground and that Plaintiff's claim against her in her official capacity be DISMISSED.
CONCLUSION
For the foregoing reasons, it is recommended that Defendant's motion to dismiss (ECF No. 18) be granted. Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, within fourteen (14) days after being served with a copy hereof. The district judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”
SO RECOMMENDED.