Escolar Documentos
Profissional Documentos
Cultura Documentos
ORDER
Plaintiff, Barry W. Rayner, confined in the Cobb County Adult Detention Center
42 U.S.C. § 1983. [Doc. 1.] Plaintiff has paid the $350.00 filing fee and $50.00
administrative fee. [See Dkt. Entry Feb. 19, 2015.] The case is now before the Court
(1) for screening under 28 U.S.C. § 1915A, and (2) on Plaintiff’s motion for
officer, or employee and dismiss the complaint or any portion thereof 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(a), (b)(1) & (2). A claim is frivolous when it “lacks an arguable
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basis either in law or in fact.” Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008)
(quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)) (internal quotation marks
omitted). A complaint fails to state a claim when the factual allegations, accepted as
true, do not “raise a right to relief above the speculative level . . . .” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555-56 (2007). A viable claim must be “plausible on its face.”
Id. at 570.
In order to satisfy the plausibility standard, the plaintiff must plead “factual
content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556). The Court construes the factual allegations favorably to
a pro se plaintiff and holds pro se pleadings to “less stringent standards than formal
(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). This leniency does not permit
the district court to act as counsel for a party or to rewrite deficient pleadings.
Lampkin-Asam v. Volusia Cnty. Sch. Bd., 261 Fed. Appx. 274, 276-77
(11th Cir. Jan. 9, 2008) (per curiam) (citing GJR Invs., Inc. v. County of Escambia, Fla.,
132 F.3d 1359, 1369 (11th Cir. 1998)); see also GJR Invs., Inc., 132 F.3d at 1369
(“Yet even in the case of pro se litigants this leniency does not give a court license to
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“To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that (1) the
defendant deprived him of a right secured under the United States Constitution or
federal law, and (2) such deprivation occurred under color of state law.” Richardson
v. Johnson, 598 F.3d 734, 737 (11th Cir. 2010) (per curiam) (citing U.S. Steel, LLC v.
Tieco, Inc., 261 F.3d 1275, 1288 (11th Cir. 2001), and Arrington v. Cobb Cnty.,
II. Discussion
Plaintiff brings this action against Cobb County; the Cobb County Adult
Gregory R. Smith, Kevin W. Blankenship, Tarver Mygatt, and Vincent Abbott; Nurse
Jane Doe 1-5; John Doe 1-5, who may be sheriff’s deputies or a psychologist; and Cobb
Plaintiff alleges that he had a sinus infection causing his right eye to be swollen
shut when he arrived at the Cobb County Adult Detention Center on October 6, 2014.
[Id. at 8.] Instead of providing treatment for that infection, Officer McCracken escorted
Plaintiff to the infirmary, where unspecified male and female staff members stripped
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him naked. [Id. at 8-10.] The staff members “slapp[ed Plaintiff] repeatedly on his
buttocks and then [slid] what felt like a cold steel object up and down between the
cheeks [of his] buttocks . . . .” [Id. at 11.] On three subsequent occasions, and
apparently for no legitimate reason, McCracken and unspecified staff members threw
Plaintiff to the ground and restrained him while unspecified nurses injected him with
a drug. [Id. at 11-12, 14.] McCracken gave Plaintiff an anti-suicide suit that “appeared
soiled with human waste and smelled strongly of urine.” [Id. at 10, 11.] Plaintiff asked
for grievance forms, but his requests were denied. [Id. at 11, 19.]
On October 8, 2014, two unspecified officers warned Plaintiff that “people who
accuse jail officers of sexual assault have accidents in the jail, like slipping and falling
down stairs.” [Id. at 13, 14.] After Plaintiff’s mother complained about the conditions
of Plaintiff’s confinement, unspecified jail officials denied him “phone, visitation, and
“[hand]cuffed and shackled [him] all day in a holding cell . . . .” [Id. at 18, 19.]
Unspecified officials also denied privileges to the entire dormitory and informed
inmates that Plaintiff was to be blamed for the denial. [Id. at 19-20.]
Plaintiff alleges that Cobb County, the Cobb County Adult Detention Center, and
Colonel Bartlett knew of prior unspecified “repeated allegations of abuse and assaultive
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misconduct toward detainees and arrestees by [jail] staff.” [Id. at 26-28.]1 Plaintiff also
alleges that Cobb County has “policies or customs of permitting the occurrence of the
kinds of wrongs set forth [in Plaintiff’s complaint].” [Id. at 26.] Plaintiff seeks
A. Correctional Officers
conditions of confinement.5 Plaintiff might state the same claims against Officers
Ventre, Piepmeier, Smith, Blankenship, Mygatt, and Abbott, but Plaintiff fails to make
1
Plaintiff makes the same allegation against someone named “Warren,” but
that person is not listed as a defendant in the style of the case or the “Parties” section
of the complaint. [See Doc. 1 at 1, 4-7.]
2
See Barnes v. Martin Cnty. Sheriff’s Dep’t, 326 Fed. Appx. 533, 534-35
th
(11 Cir. May 29, 2009) (per curiam).
3
See Powell v. Barrett, 541 F.3d 1298, 1305, 1314 & n.7 (11th Cir. 2008)
(en banc); Fortner v. Thomas, 983 F.2d 1024, 1026, 1030 (11th Cir. 1993).
4
See Hudson v. McMillian, 503 U.S. 1, 6-7 (1992); Cockrell v. Sparks,
510 F.3d 1307, 1311 (11th Cir. 2007) (per curiam); Skrtich v. Thornton, 280 F.3d 1295,
1304 (11th Cir. 2002).
5
See Farmer v. Brennan, 511 U.S. 825, 832, 834, 837 (1994); Boxer X v.
Harris, 437 F.3d 1107, 1111 (11th Cir. 2006).
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amended complaint within thirty (30) days of the date of this Order. See Bryant v.
Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001) (per curiam) (holding that “[w]here a
more carefully drafted complaint might state a claim, a plaintiff must be given at least
one chance to amend the complaint before the district court dismisses the action with
prejudice”) (citing Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991)). Plaintiff shall
note the following instructions under the heading “Statement of Claim” on page 3 of
this Court’s form § 1983 complaint: “State here as briefly as possible the facts of your
case. Describe how each defendant is involved. . . . Do not give any legal arguments
or cite any cases or statutes.” Plaintiff should include his allegations against
B. Colonel Bartlett
actions and the unconstitutional conduct. Cottone v. Jenne, 326 F.3d 1352, 1360
(11th Cir. 2003). A causal connection can be shown if (1) the supervisor is on notice
of historical widespread abuse and fails to take corrective action, (2) the supervisor has
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a custom or policy that results in the alleged constitutional violation, or (3) “facts
support an inference that the supervisor directed the subordinates to act unlawfully or
knew that the subordinates would act unlawfully and failed to stop them from doing
abuse and assaultive misconduct toward detainees and arrestees by [jail] staff.”
[Id. at 26-28.] That allegation falls short of establishing a causal connection between
Bartlett’s actions and McCracken’s unconstitutional conduct. Plaintiff may address this
C. Cobb County
individual of his constitutional rights only if the alleged injury is caused by an official
policy or custom.” Jordan v. Conway, 441 Fed. Appx. 761, 764 (11th Cir. Oct. 3, 2011)
(per curiam) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)). Plaintiff
alleges that Cobb County has “policies or customs of permitting the occurrence of the
kinds of wrongs set forth [in Plaintiff’s complaint].” [Id. at 26.] However, Plaintiff
fails to allege specific facts regarding the relevant policies or customs. Plaintiff may
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D. Remaining Defendants
Plaintiff may not sue the Cobb County Adult Detention Center because a
detention center or jail “is not an entity capable of being sued under Georgia law.”
Brannon v. Thomas Cnty. Jail, 280 Fed. Appx. 930, 934 n.1 (11th Cir. June 9, 2008)
(per curiam).
To the extent that Plaintiff states any claims against Nurse Jane Doe 1-5, or John
Doe 1-5, fictitious-party pleading generally is not permitted in federal court. See
Richardson, 598 F.3d at 738.6 Plaintiff must identify or sufficiently describe each
Defendant and his or her alleged actions. See id. (affirming dismissal of claim for
Attorney Dance. Plaintiff may address these deficiencies in his amended complaint.
6
There is “a limited exception to this rule when the plaintiff’s description
of the defendant is so specific as to be at the very worst, surplusage.” Richardson,
598 F.3d at 738 (quoting Dean v. Barber, 951 F.2d 1210, 1215-16 (11th Cir. 1992))
(internal quotation marks omitted). “There may be times when . . . the plaintiff is
unwilling or unable to use a party’s real name. Also, one may be able to describe an
individual . . . without stating his name precisely or correctly.” Dean,
951 F.2d at 1215-16 (citation, footnote, and internal quotation marks omitted); see also
Moulds v. Bullard, 345 Fed. Appx. 387, 390 (11th Cir. Aug. 17, 2009) (per curiam)
(affirming dismissal of claims against fictitious parties because plaintiff completely
failed to describe some officers, only generally described duty stations of others, and
failed to timely request discovery to learn identities).
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E. Remaining Claims
Plaintiff does not state a claim based on the alleged denial of access to grievance
an inmate grievance procedure.” Thomas v. Warner, 237 Fed. Appx. 435, 437-38
defendants who retaliated against him. The Court is authorized to dismiss a claim when
the plaintiff fails to identify or sufficiently describe the defendant against whom the
claim is brought. See Richardson, 598 F.3d at 738. Plaintiff may address this
Finally, Plaintiff claims that Defendants engaged in a conspiracy. [See id. at 29-
30.] However, Plaintiff has not alleged any facts showing an agreement to violate his
constitutional rights. See Myers v. Bowman, 713 F.3d 1319, 1332 (11th Cir. 2013).
this case. [Doc. 3 at 1-2.] Because Plaintiff may file an amended complaint, and the
7
See Douglas v. Yates, 535 F.3d 1316, 1321 (11th Cir. 2008).
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Court has not completed the 28 U.S.C. § 1915A screening of this action, Plaintiff’s
IV. Conclusion
[Doc. 3], is DENIED WITHOUT PREJUDICE; and (2) Plaintiff may file an
amended complaint within thirty (30) days of the date of this Order. Plaintiff’s
amended complaint will replace his original complaint. See Lowery v. Ala. Power Co.,
483 F.3d 1184, 1219 (11th Cir. 2007) (“Under . . . federal law, an amended complaint
supersedes the initial complaint and becomes the operative pleading in the case.”).
Plaintiff is REQUIRED to keep the Court advised of his current address and
telephone number at all times while his lawsuit is pending, and failure to do so shall
result in the dismissal of this action pursuant to Local Rule 41.2C, N.D. Ga. Plaintiff’s
failure to comply with any aspect of this Order may result in the dismissal of this action
with the case number for this action and to RESUBMIT this action to the undersigned
Magistrate Judge upon receipt of an amended complaint or the expiration of the thirty-
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