Opinion
4:22-cv-00082-CDL-MSH
08-24-2022
PHILLIP NATHAN KERCH, Plaintiff, v. GEORGIA DEPARTMENT OF CORRECTIONS, et al., Defendants.
ORDER & RECOMMENDATION
STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE.
Plaintiff Phillip Nathan Kerch filed a pro se handwritten document seeking a preliminary injunction or temporary restraining order while he was a prisoner in Rutledge State Prison in Columbus, Georgia,. Compl., ECF No. 1. Plaintiff also filed a motion for leave to proceed in this action in forma pauperis and a motion for the appointment of counsel. Mot. for Leave to Proceed In Forma Pauperis, ECF No. 2; Mot. to Appoint Counsel, ECF No. 4. After he filed these documents, Plaintiff was transferred to Baldwin State Prison. Notice of Change of Address, ECF No. 7.
Because a civil action is commenced by filing a complaint, Fed.R.Civ.P. 3, as opposed to a motion for injunctive relief, Plaintiff was ordered to submit a properly completed 42 U.S.C. §1983 form. Order, ECF No. 6. Since that order was entered, Plaintiff has filed two recast complaints (ECF Nos. 6 & 12), a motion to compel (ECF No. 9), a motion for leave to file an amended complaint (ECF No. 10), and a new motion to appoint counsel (ECF No. 11). As set forth below, Plaintiff's motion for leave to proceed in forma pauperis and his motion to file an amended complaint are GRANTED. Plaintiff's motions to appoint counsel, however, are DENIED.
In light of this, Plaintiff's complaint is ripe for preliminary review. On that review, Plaintiff will be permitted to proceed for further factual development on his deliberate indifference to safety claims against Defendants Warden Jones, Deputy Warden Burke, and Deputy Warden Martin, as well as his retaliation claim against Jones and Burke. It is RECOMMENDED that Plaintiff's claims be DISMISSED WITHOUT PREJUDICE as to Unit Manager Stubbs and Martin. Finally, with regard to Plaintiff's motion to compel, which is in the nature of a motion for injunctive relief, it is RECOMMENDED that the motion to be DENIED.
Plaintiff does not include claims against the Georgia Department of Corrections, Lieutenant Spates, Sergeant Strickland, or Warden Berry in his amended complaint. See generally Am. Compl., ECF No. 12. Accordingly, the Clerk is DIRECTED to remove them as defendants on the docket.
MOTION TO PROCEED IN FORMA PAUPERIS
Under 28 U.S.C. § 1915(g), a prisoner is barred from bringing a civil action in federal court in forma pauperis
if [he] has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
This is known as the “three strikes provision.” A prisoner incurs a “strike” any time he has a federal lawsuit or appeal dismissed on the grounds that it (1) is frivolous, (2) is malicious, or (3) fails to state a claim. See Medberry v. Butler, 185 F.3d 1189, 1192 (11th Cir. 1999); see also Daker v. Comm'r, Ga. Dep't of Corr., 820 F.3d 1278, 1283-84 (11th Cir. 2016) (confirming that “these three grounds are the only grounds that can render a dismissal a strike”). Once a prisoner incurs three strikes, his ability to proceed in forma pauperis in federal court is greatly limited: leave to proceed in forma pauperis may not be granted unless the prisoner is under imminent danger of serious physical injury. Medberry, 185 F.3d at 1192 . The Eleventh Circuit has upheld the constitutionality of § 1915(g) because it does not violate an inmate's right to access the courts, the doctrine of separation of powers, an inmate's right to due process of law, or an inmate's right to equal protection. Rivera v. Allin, 144 F.3d 719, 723 (11th Cir. 1998) (internal citations omitted), abrogated on other grounds by Jones v. Bock, 549 U.S. 199 (2007).
A review of court records on the Federal Judiciary's Public Access to Court Electronic Records (“PACER”) database reveals that Plaintiff has filed multiple federal lawsuits and that at least three of his complaints have been dismissed as frivolous or malicious or for failure to state a claim. See Order Adopting R. & R., Kerch v. Johnson, Case No. 5:17-cv-00186-MTT-CHW (M.D. Ga. July 17, 2018) (dismissing for failure to exhaust administrative remedies); Order Adopting R. & R., Kerch v. Johnson, Case No. 5:17-cv-00108-MTT-CHW (M.D. Ga. May 30, 2018) (dismissing for failure to exhaust administrative remedies); Order Dismissing Complaint, Kerch v. Berry, Case No. 5:16-cv-00171-CAR-MSH (M.D. Ga. May 25, 2016) (dismissing for failure to state a claim).
A civil action which is dismissed for failure to exhaust administrative remedies counts as a strike for purposes of 28 U.S.C. § 1915(g). See White v. Lemma, 947 F.3d 1373, 1379-80 (11th Cir. 2020) (finding that failure to exhaust administrative remedies counts as a strike under Eleventh Circuit precedent); Rivera, 144 F.3d at 731 (“A claim that fails to allege the requisite exhaustion of remedies is tantamount to one that fails to state a claim upon which relief may be granted.”).
Plaintiff is accordingly barred from prosecuting this action in forma pauperis unless he is in imminent danger of serious physical injury. 28 U.S.C. § 1915(g). To qualify for this exception, a prisoner must allege specific facts that describe an “ongoing serious physical injury,” or “a pattern of misconduct evidencing the likelihood of imminent serious physical injury.” Sutton v. Dist. Atty's Office, 334 Fed.Appx. 278, 279 (11th Cir. 2009) (per curiam) (internal quotation marks omitted). Complaints of past injuries are not sufficient. See Medberry, 185 F.3d at 1193 . Vague and unsupported claims of possible dangers likewise do not suffice. See White v. State of Colo., 157 F.3d 1226, 1231 (10th Cir. 1998). The exception to § 1915(g) is to be applied only in “genuine emergencies,” when (1) “time is pressing,” (2) the “threat or prison condition is real and proximate,” and (3) the “potential consequence is serious physical injury.” Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002).
In this regard, Plaintiff alleges in the amended complaint that he is known as a snitch within the prison system and, before his transfer, a hit was put out offering money to anyone who stabbed Plaintiff or poured boiling hot water on him. Am. Compl. 3, ECF No. 12. Moreover, because Plaintiff filed grievances and other statements, he was warned by officers at Rutledge State Prison that he would be transferred to a harsher prison where he “would be dealt with.” Id. at 3-4. Thereafter, Plaintiff was transferred to Baldwin State Prison where he was housed with a large gang member who sexually assaulted him within days of them being put into a cell together. Id. at 5-6. Finally, Plaintiff asserts that these dangers are ongoing and he remains a target. Id. at 6.
Plaintiff has sufficiently alleged that he is in danger of serious physical injury, and thus, his motion to proceed in forma pauperis is now GRANTED. Plaintiff is, however, still obligated to eventually pay the full balance of the filing fee, in installments, as set forth in § 1915(b). The district court's filing fee is not refundable, regardless of the outcome of the case, and must therefore be paid in full even if Plaintiff's complaint is dismissed prior to service. For this reason, the CLERK is DIRECTED to forward a copy of this Order to the business manager of the facility in which Plaintiff is incarcerated so that withdrawals from his account may commence as payment towards the filing fee, as explained below.
A. Directions to Plaintiff's Custodian
Because Plaintiff has now been granted leave to proceed in forma pauperis in the above-captioned case, it is hereby ORDERED that the warden of the institution wherein Plaintiff is incarcerated, or the Sheriff of any county wherein he is held in custody, and any successor custodians, each month cause to be remitted to the CLERK of this Court twenty percent (20%) of the preceding month's income credited to Plaintiff's trust account at said institution until the $350.00 filing fee has been paid in full. The funds shall be collected and withheld by the prison account custodian who shall, on a monthly basis, forward the amount collected as payment towards the filing fee, provided the amount in the prisoner's account exceeds $10.00. The custodian's collection of payments shall continue until the entire fee has been collected, notwithstanding the dismissal of Plaintiff's lawsuit or the granting of judgment against him prior to the collection of the full filing fee.
B. Plaintiff's Obligations Upon Release
An individual's release from prison does not excuse his prior noncompliance with the provisions of the PLRA. Thus, in the event Plaintiff is hereafter released from the custody of the State of Georgia or any county thereof, he shall remain obligated to pay those installments justified by the income to his prisoner trust account while he was still incarcerated. The Court hereby authorizes collection from Plaintiff of any balance due on these payments by any means permitted by law in the event Plaintiff is released from custody and fails to remit such payments. Plaintiff's complaint may be dismissed if he is able to make payments but fails to do so or if he otherwise fails to comply with the provisions of the PLRA.
MOTIONS TO APPOINT COUNSEL
As noted above, Plaintiff has filed two motions for the appointment of counsel. Mots. to Appoint Counsel, ECF Nos. 4 & 11. In the first motion, Plaintiff asserts that he is unable to afford counsel, his imprisonment will limit his ability to litigate this case, the case involves complex issues, and counsel would be better able to present evidence and examine witnesses. Mot. to Appoint Counsel 1-2, ECF No. 4. Plaintiff also attached a declaration stating that he is a “known snitch” within the prison system and experiences constant fear for his safety due to this status. Attach. to Mot. to Appoint Counsel 1-3, ECF No. 4-1. In the second motion, Plaintiff reiterates that he is unable to afford counsel, his imprisonment limits his ability to litigate the case, the case involves complex issues, and counsel would be better able to present evidence and examine witnesses. Mot. to Appoint Counsel 1, ECF No. 11.
“Appointment of counsel in a civil case is not a constitutional right.” Wahl v McIver, 773 F.2d 1169, 1174 (11th Cir. 1986). Instead, appointment of counsel is a privilege that is justified only by exceptional circumstances. Id. In deciding whether legal counsel should be provided, the Court considers, among other factors, the merits of Plaintiff's claim and the complexity of the issues presented. Holt v. Ford, 862 F.2d 850, 853 (11th Cir. 1989).
The federal in forma pauperis statute authorizes courts to “request an attorney to represent any person unable to afford counsel.” 28 U.S.C. § 1915(e)(1). The statute does not, however, provide any funding to pay attorneys for their representation or authorize courts to compel attorneys to represent an indigent party in a civil case. See Mallard v. U.S. Dist. Ct. for S. Dist. of Iowa, 490 U.S. 296 (1989).
In accordance with Holt, and upon a review of the record in this case, the Court notes that Plaintiff has set forth the essential factual allegations underlying his claims, and that the applicable legal doctrines are readily apparent. As such, Plaintiff's motion for appointment of counsel is DENIED. Should it later become apparent that legal assistance is required in order to avoid prejudice to Plaintiff's rights, the Court, on its own motion, will consider assisting him in securing legal counsel at that time. Consequently, there is no need for Plaintiff to file additional requests for counsel.
MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT
Plaintiff has filed a motion to amend his complaint. Mot. for Leave to File Amended Compl., ECF No. 10. To that end, Plaintiff has also filed the proposed amended complaint. Am. Compl., ECF No. 12. The document originally docketed as a complaint in this case was in the nature of a motion for preliminary injunction, rather than an initial complaint. See Compl., ECF No. 1. Thus, Plaintiff's recast complaint (ECF No. 6) was actually his initial complaint. See Recast Compl., ECF No. 6.
In a recent filing, Plaintiff indicates that he would like the Court to dismiss his pending motions for injunction, which apparently refers to the original filing and any requests in his subsequent recast complaint for injunctive relief. Attach. to Mot. to Compel, ECF No. 9-1. In this regard, Plaintiff previously sought relief against officials at Rutledge State Prison, and he is no longer housed at that prison, so he is no longer seeking this particular injunctive relief. Thus, no action is taken and no recommendations are made with regard to any requests for injunctive relief in his previous filings. In the new motion, Plaintiff indicates that he wants to add “a new injunction.” Id. On this point, Plaintiff has filed a motion to compel, which appears to be in the nature of a motion for injunctive relief. Mot. to Compel, ECF No. 9. That motion is addressed below. If Plaintiff is seeking any injunctive relief other than what is discussed in connection with that motion, he must file a separate motion setting forth his basis for any such relief.
As relevant here, a plaintiff may file an amended complaint “once as a matter of course” if he does so within twenty-one days of service. Fed.R.Civ.P. 15(a)(1)(A). Because Plaintiff's complaint had not yet undergone preliminary review or been served on any defendants, Plaintiff was entitled to amend it as a matter of course. See Id. Accordingly, Plaintiff's motion to amend is GRANTED. The amended complaint supersedes the previously filed complaint and is now the operative pleading in this case.
PRELIMINARY REVIEW OF PLAINTIFF'S COMPLAINT
I. Standard of Review
Because he has been granted leave to proceed in forma pauperis, Plaintiff's complaint is now ripe for preliminary review. See 28 U.S.C. § 1915A(a) (requiring the screening of prisoner cases) & 28 U.S.C. § 1915(e) (regarding in forma pauperis proceedings). When performing this review, the court must accept all factual allegations in the complaint as true. Brown v. Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004). Pro se pleadings are also “held to a less stringent standard than pleadings drafted by attorneys,” and thus, pro se claims are “liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). Still, the Court must dismiss a prisoner complaint if it “(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. §1915A(b).
A claim is frivolous if it “lacks an arguable basis either in law or in fact.” Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008) (internal quotation marks omitted). The Court may dismiss claims that are based on “indisputably meritless legal” theories and “claims whose factual contentions are clearly baseless.” Id. (internal quotation marks omitted). A complaint fails to state a claim if it does not include “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The factual allegations in a complaint “must be enough to raise a right to relief above the speculative level” and cannot “merely create[] a suspicion [of] a legally cognizable right of action.” Twombly, 550 U.S. at 555 (first alteration in original). In other words, the complaint must allege enough facts “to raise a reasonable expectation that discovery will reveal evidence” supporting a claim. Id. at 556. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
To state a claim for relief under §1983, a plaintiff must allege that (1) an act or omission deprived him of a right, privilege, or immunity secured by the Constitution or a statute of the United States; and (2) the act or omission was committed by a person acting under color of state law. Hale v. Tallapoosa Cnty, 50 F.3d 1579, 1582 (11th Cir. 1995). If a litigant cannot satisfy these requirements or fails to provide factual allegations in support of his claim or claims, the complaint is subject to dismissal. See Chappell v. Rich, 340 F.3d 1279, 1282-84 (11th Cir. 2003).
II. Plaintiff's Allegations
In his amended complaint, Plaintiff asserts that, in September 2021, while he was in Rutledge State Prison, he approached a kitchen staff member and an inmate who were making a transaction involving contraband. Am. Compl. 2, ECF No. 11. The kitchen worker was afraid that Plaintiff would tell what he had seen, so she told the inmate that, as long as Plaintiff was around, she would not participate in any more such transactions. Id. As a result, two of the inmates who conduct such transactions with staff members put out the word that they would pay for someone to harm Plaintiff. Id. at 2-3. Another inmate showed Plaintiff a text message on a contraband phone, which stated that someone would pay $200 for each time that Plaintiff was stabbed and $500 if boiling water was poured on Plaintiff's face. Id. at 3.
The inmate who showed Plaintiff the text message told Plaintiff that, if he did not go into protective custody, seven inmates were coming to his room that night to kill him. Id. At that point, Plaintiff went to Deputy Warden Fleming's office and told Deputy Warden Fleming, Captain Caufield, and Lieutenant Stubbs about the situation. Id. at 2-3. Plaintiff was then placed in an isolation/segregation cell for his protection. Id. at 3.
Thereafter, Plaintiff wrote numerous statements asking to be put into protective custody. Id. He also had a staff member contact an O.P.S. investigator, and Plaintiff informed the investigator about how contraband including phones, drugs, and cigarettes had been coming in through the back dock at the warehouse. Id. The investigator told Plaintiff that she would pass the information on to her boss. Id. When the investigator asked Plaintiff if he felt safe, he said that he did not. Id. At that point, Plaintiff was placed in a one-man cell where he wrote statements and spoke with all of the wardens about being provided protective custody. Id. at 3-4.
Plaintiff also wrote grievances, but Warden Jones and Deputy Warden Burke told Plaintiff to drop his grievances and stop writing new ones or he would be sent to a more dangerous prison where he would not be safe. Id. at 4. Plaintiff then wrote to the ombudsman unit of internal affairs, the regional director of the parole board, this Court, someone in inmate affairs, a mental health counselor, and Plaintiff's grandmother. Id.
Thereafter, Lieutenant Stubbs and Lieutenant Spates were going to move Plaintiff into a cell with another inmate who intended to stab Plaintiff, but Plaintiff informed Captain Caufield, and he overrode the other officers. Id. Plaintiff was in the one-man cell for nine months. Id. During that time, Plaintiff's cell was searched nine times. Id. As a result of one of those searches, Sergeant Turner falsely wrote Plaintiff up for a knife even though Turner did not actually participate in the search and the knife that was supposedly found was never produced. Id. Plaintiff was also threatened. Id. In particular, Deputy Warden Burke told Plaintiff that if he did not tell her everything that he had told the investigator, she would ensure that he was harmed. Id. Plaintiff still refused and wrote even more statements and grievances. Id.
At some point, an inmate Plaintiff was afraid of came to Plaintiff's cell and told Plaintiff that he would not be safe anywhere that he went. Id. at 4-5. Additionally, after Plaintiff filed a motion for an injunction in the District Court, Deputy Warden Burke came to Plaintiff's cell and told him that he was going to wish he had not discussed her in his statements because she had friends where he was going. Id. at 5. The following Tuesday, Plaintiff was transferred to Baldwin State Prison. Id.
When he arrived at Baldwin State Prison, Plaintiff spoke to Deputy Warden Martin and explained his situation. Id. Deputy Warden Martin told Plaintiff that he would put Plaintiff into isolation/segregation for Plaintiff's protection. Id. Instead, however, Plaintiff was placed into a cell with another inmate who was much bigger than Plaintiff and was a known gang member. Id. Two days later, that inmate raped Plaintiff. Id. After the rape, hours passed before anyone came to help Plaintiff. Id. Plaintiff gave a nurse a note telling her what had happened, and eventually, Plaintiff was seen by a nurse and an investigator pursuant to the Prison Rape Elimination Act (“P.R.E.A.”).
Plaintiff was subsequently put back into the cell alone, but after he filed grievances, another inmate was placed in the cell with him. Id. The orderlies and other inmates have all indicated that they are aware that Plaintiff has been an informant and that it is only a matter of time before he will be harmed. Id. at 5-6. Plaintiff wrote additional statements to the administration requesting protective custody because he lives in constant fear. Id. at 6.
Plaintiff has filed this complaint asserting that Defendants Jones, Stubbs, and Burke failed to protect Plaintiff by denying him protective custody and that Jones and Burke retaliated against Plaintiff by threatening him and having him transferred to Baldwin State Prison. Id. at 6-7. Plaintiff further asserts that Defendants Berry and Martin failed to protect Plaintiff after Plaintiff informed Martin that a hit had been placed in his life. Id.
III. Plaintiff's Claims
A. Deliberate Indifference to Safety
Plaintiff claims that all of the defendants were deliberately indifferent to his safety. To state an Eighth Amendment claim for exposure to unsafe conditions, a prisoner must allege facts to show the existence of a prison condition that is extreme and poses an unreasonable risk the prisoner's health or safety. See Chandler v. Crosby, 379 F.3d 1278, 1289 (11th Cir. 2004). Additionally, the prisoner must allege facts to show that the defendant acted with deliberate indifference to the condition, which requires that the defendant knew that an excessive risk to health or safety existed but disregarded that risk. Id. at 1289-90. If the defendant took action that reasonably responded to the risk, the defendant will not be held liable, even if the harm was not averted. Id. at 1290.
1. Jones, Stubbs, and Burke
Plaintiff first asserts that Defendants Jones, Stubbs, and Burke were deliberately indifferent to Plaintiff's safety by declining to place him in protective custody and by transferring him to Baldwin State Prison, putting him in an even more dangerous situation than he was in at Rutledge. Plaintiff asserts that he was, and continues to be, in danger because it is known within the prison system that he has informed about illegal activities involving inmates and guards. Moreover, he contends that he spoke directly with Stubbs after a hit was placed on Plaintiff relating to this situation. In response, Stubbs and others had Plaintiff placed in an isolation cell. Plaintiff also asserts that, at some point, Stubbs was going to have Plaintiff placed in a cell with another inmate who would have attacked Plaintiff, but another officer intervened.
Thus, Plaintiff's allegations show that Stubbs took action to protect Plaintiff when confronted with Plaintiff's concerns about potential danger by putting Plaintiff into segregation. Although Stubbs apparently intended to take later action that would have been contrary to Plaintiff's safety, he did not actually do so. Moreover, Plaintiff does not allege that he was actually harmed when he was in Rutledge State Prison, nor does he assert facts that suggest that Stubbs was involved in having Plaintiff transferred to Baldwin State Prison. Accordingly, Plaintiff's actions do not show that Plaintiff suffered any damage, or that he continues to be at risk of harm, due to any action of Stubbs. It is therefore RECOMMENDED that this claim be DISMISSED WITHOUT PREJUDICE as to Defendant Stubbs.
With regard to Defendants Jones and Burke, Plaintiff asserts that both were aware of his situation because of his repeated statements and grievances relating to this matter. Plaintiff's allegations also establish that Jones and Burke were familiar with the grievances insofar as they told Plaintiff to drop his existing grievances and stop filing new ones. Moreover, they threatened to transfer Plaintiff to a more dangerous prison where he would be harmed, and Plaintiff was subsequently transferred to Baldwin where he was housed with a gang member who raped him. Plaintiff also alleges that he continues to fear for his life in Baldwin State Prison.
While it is not clear yet whether the assault was connected with Plaintiff's status as an informant, at this stage of the proceeding, the Court will accept Plaintiff's allegations and construe them in his favor. This includes Plaintiff's allegation that he is still in danger. Applying this standard, it appears possible that Jones and Burke disregarded a substantial risk of harm to Plaintiff by transferring Plaintiff to Baldwin State Prison. Accordingly, Plaintiff will be permitted to proceed for further factual development on his claim that Jones and Burke were deliberately indifferent to Plaintiff's safety.
2. Berry and Martin
Plaintiff also asserts a claim that Defendants Berry and Martin were deliberately indifferent to his safety. With regard to Berry, Plaintiff's only allegation is his statement in the list of defendants that Berry is the Warden of Baldwin State Prison and that he is legally responsible for the operation of the prison and the welfare of the inmates. As Plaintiff does not make any specific allegations relating to Warden Berry, it appears that Plaintiff has included Berry as a defendant based on his supervisory position.
To state a claim against a supervisory official, a prisoner must allege facts showing either that the supervisor personally participated in the alleged constitutional violation or that there is a causal connection between the actions of the supervising official and the alleged constitutional deprivation. H.C. by Hewett v. Jarrard, 786 F.2d 1080, 1086-87 (11th Cir. 1986). This may be done by alleging facts showing that the official either “(1) instituted a custom or policy which resulted in a violation of the plaintiff's constitutional rights; (2) directed his subordinates to act unlawfully; or (3) failed to stop his subordinates from acting unlawfully when he knew they would.” Gross v. White, 340 Fed.Appx. 527, 531 (11th Cir. 2009) (per curiam) (citing Goebert v. Lee County, 510 F.3d 1312, 1331 (11th Cir. 2007)).
Here, Plaintiff's allegations do not show any causal connection between Warden Berry's actions and Plaintiff's claims. Accordingly, it is RECOMMENDED that Plaintiff's deliberate indifference to safety claim be DISMISSED WITHOUT PREJUDICE as to Warden Berry.
With regard to Deputy Warden Martin, Plaintiff asserts that he spoke to Martin upon entering Baldwin State Prison and explained his entire situation and the threats to his safety. Despite Martin telling Plaintiff that he would be housed alone, Plaintiff was then put into a cell with a large gang member, who sexually assaulted Plaintiff. Accepting Plaintiff's allegations as true and construing them in his favor, it is possible that Deputy Warden Martin was aware of a potential risk of harm to Plaintiff and disregarded that danger. Thus, Plaintiff will be permitted to proceed on his deliberate indifference to safety claim against Deputy Warden Martin.
B. Retaliation
Plaintiff also asserts that Jones and Burke retaliated against him for filing grievances. “The First Amendment forbids prison officials from retaliating against prisoners for exercising the right of free speech.” Farrow, 320 F.3d at 1248. Thus, a prisoner litigant may state a claim for retaliation by alleging that (1) he engaged in constitutionally protected speech, (2) he suffered an adverse action likely to “deter a person of ordinary firmness from engaging in such speech,” and (3) there was a causal relationship between the speech and the retaliatory action. Smith v. Mosley, 532 F.3d 1270, 1276 (11th Cir. 2008).
In this regard, Plaintiff asserts that he engaged in protected speech by filing grievances regarding his situation. As a result, Plaintiff asserts that he was transferred to a more dangerous prison where his safety was in greater danger than at Rutledge. Moreover, Plaintiff suggests that there was a causal connection between the speech and the transfer in that he alleges that Jones and Burke specifically threatened to transfer Plaintiff and to ensure that he was harmed following the transfer. Therefore, Plaintiff will be permitted to proceed on a retaliation claim against Jones and Burke.
IV. Conclusion
Thus, for the reasons set forth above, Plaintiff will be permitted to proceed for further factual development on his deliberate indifference to safety claims against Jones, Burke, and Martin, as well as his retaliation claim against Jones and Burke. It is RECOMMENDED that Plaintiff's claims be DISMISSED WITHOUT PREJUDICE as to Stubbs and Berry.
MOTION TO COMPEL
In the motion to compel, Plaintiff asks the Court to order Defendant Warden Berry “to get his staff to do their duties” as set forth by their job titles, the Georgia Department of Corrections rules, and the standard operating procedures. Mot. to Compel, ECF No. 9. In particular, Plaintiff asserts that, when his cellmate raped him, he had to wait several hours before an officer came around so that Plaintiff could report the assault. Id. at 1. Plaintiff asserts that this is contrary to the standard operating procedures and other rules, which require inmate checks every thirty minutes. Id. This motion appears to be seeking preliminary injunctive relief. See generally id.
A temporary restraining order (“TRO”) or preliminary injunction is a drastic remedy used primarily to preserve the status quo rather than to grant most or all of the substantive relief sought in the complaint. See, e.g., Cate v. Oldham, 707 F.2d 1176, 1185 (11th Cir. 1983); Fernandez-Roque v. Smith, 671 F.2d 426, 429 (11th Cir. 1982). Factors a movant must show to be entitled to a TRO include: “(1) a substantial likelihood of ultimate success on the merits; (2) the TRO is necessary to prevent irreparable injury; (3) the threatened injury outweighs the harm the TRO would inflict on the non-movant; and (4) the TRO would serve the public interest.” Ingram v. Ault, 50 F.3d 898, 900 (11th Cir. 1995) (per curiam).
The standard for obtaining a TRO is the same as the standard for obtaining a preliminary injunction. See Parker v. State Bd. of Pardons & Paroles, 275 F.3d 1032, 1034-35 (11th Cir. 2001) (per curiam); Windsor v. United States, 379 Fed.Appx. 912, 916-17 (11th Cir. 2010) (per curiam).
At this stage, Plaintiff has not sufficiently shown a “substantial likelihood of success on the merits,” as he has yet to identify any objective evidence to support his deliberate indifference to safety and retaliation claims. In particular, it is still unclear if Plaintiff will be able to show that the defendants were deliberately indifferent to his safety. Thus, Plaintiff is seeking to have the Court intervene in prison operations without the benefit of a full picture of the circumstances surrounding Plaintiff's claims. The Court cannot determine based solely on Plaintiff's unsupported allegations that he has a substantial likelihood of success on the merits.
Moreover, Plaintiff has also failed to allege facts showing that his threatened injury outweighs any harm to defendants or that an injunction would not be adverse to the public interest. In this regard, Plaintiff asks the Court to order prison administrators to act in a particular way. Prison administrators, however, “should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” Bell v. Wolfish, 441 U.S. 520, 547 (1979). The relief requested by Plaintiff in this case would interfere with the officials' decision making with regard to prison operations. Plaintiff's motion, therefore, falls short of meeting the prerequisites for issuance of a temporary restraining order or preliminary injunction and it is RECOMMENDED that the motion be DENIED.
OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this order and recommendation with the United States District Judge to whom this case is assigned WITHIN FOURTEEN (14) DAYS after being served with a copy of this order and recommendation. The parties may seek an extension of time in which to file written objections, provided a request for an extension is filed prior to the deadline for filing written objections. Any objection is limited in length to TWENTY (20) PAGES. See M.D. Ga. L.R. 7.4. Failure to object in accordance with the provisions of § 636(b)(1) waives the right to challenge on appeal the district judge's order based on factual and legal conclusions to which no objection was timely made. See 11th Cir. R. 3-1.
ORDER FOR SERVICE
For those reasons discussed above, it is hereby ORDERED that service be made on DEFENDANTS WARDEN JONES, DEPUTY WARDEN BURKE, and DEPUTY WARDEN MARTIN, and that they file an Answer, or other response as appropriate under the Federal Rules, 28 U.S.C. § 1915, and the Prison Litigation Reform Act. Defendants are also reminded of the duty to avoid unnecessary service expenses, and the possible imposition of expenses for failure to waive service.
DUTY TO ADVISE OF ADDRESS CHANGE
During this action, all parties shall at all times keep the Clerk of this Court and all opposing attorneys and/or parties advised of their current address. Failure to promptly advise the Clerk of any change of address may result in the dismissal of a party's pleadings.
DUTY TO PROSECUTE ACTION
Plaintiff must diligently prosecute his Complaint or face the possibility that it will be dismissed under Rule 41(b) for failure to prosecute. Defendants are advised that they are expected to diligently defend all allegations made against them and to file timely dispositive motions as hereinafter directed. This matter will be set down for trial when the Court determines that discovery has been completed and that all motions have been disposed of or the time for filing dispositive motions has passed.
FILING AND SERVICE OF MOTIONS, PLEADINGS, AND CORRESPONDENCE
It is the responsibility of each party to file original motions, pleadings, and correspondence with the Clerk of Court. A party need not serve the opposing party by mail if the opposing party is represented by counsel. In such cases, any motions, pleadings, or correspondence shall be served electronically at the time of filing with the Court. If any party is not represented by counsel, however, it is the responsibility of each opposing party to serve copies of all motions, pleadings, and correspondence upon the unrepresented party and to attach to said original motions, pleadings, and correspondence filed with the Clerk of Court a certificate of service indicating who has been served and where (i.e., at what address), when service was made, and how service was accomplished (i.e., by U.S. Mail, by personal service, etc.).
DISCOVERY
Plaintiff shall not commence discovery until an answer or dispositive motion has been filed on behalf of Defendants from whom discovery is sought by Plaintiff. Defendants shall not commence discovery until such time as an answer or dispositive motion has been filed. Once an answer or dispositive motion has been filed, the parties are authorized to seek discovery from one another as provided in the Federal Rules of Civil Procedure. Plaintiff's deposition may be taken at any time during the time period hereinafter set out, provided that prior arrangements are made with his custodian. Plaintiff is hereby advised that failure to submit to a deposition may result in the dismissal of his lawsuit under Fed.R.Civ.P. 37 of the Federal Rules of Civil Procedure.
IT IS HEREBY ORDERED that discovery (including depositions and the service of written discovery requests) shall be completed within 90 days of the date of filing of an answer or dispositive motion by Defendants (whichever comes first) unless an extension is otherwise granted by the Court upon a showing of good cause therefor or a protective order is sought by Defendants and granted by the Court. This 90-day period shall run separately as to each Defendant beginning on the date of filing of each Defendant's answer or dispositive motion (whichever comes first). The scheduling of a trial may be advanced upon notification from the parties that no further discovery is contemplated or that discovery has been completed prior to the deadline.
Discovery materials shall not be filed with the Clerk of Court. No party shall be required to respond to any discovery not directed to him or served upon him by the opposing counsel/party. The undersigned incorporates herein those parts of the Local Rules imposing the following limitations on discovery: except with written permission of the Court first obtained, INTERROGATORIES may not exceed TWENTY-FIVE (25) to each party, REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS under Rule 34 of the Federal Rules of Civil Procedure may not exceed TEN (10) requests to each party, and REQUESTS FOR ADMISSIONS under Rule 36 of the Federal Rules of Civil Procedure may not exceed FIFTEEN (15) requests to each party. No party is required to respond to any request which exceed these limitations.
REQUESTS FOR DISMISSAL AND/OR JUDGMENT
Dismissal of this action or requests for judgment will not be considered by the Court in the absence of a separate motion accompanied by a brief/memorandum of law citing supporting authorities. Dispositive motions should be filed at the earliest time possible, but no later than one hundred-twenty (120) days from when the discovery period begins.
SO ORDERED and RECOMMENDED.