United States District Court, S.D. Alabama, Southern Division
RODNEY L. MAJOR, # 247758, Plaintiff,
CYNTHIA STEWART, et al., Defendants.
REPORT AND RECOMMENDATION
SONJA F. BIVINS, Magistrate Judge.
Plaintiff, an Alabama prison inmate proceeding pro se and in forma pauperis, filed a complaint under 42 U.S.C. § 1983. This action has been referred to the undersigned for appropriate action pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(4). It is recommended that this action be dismissed without prejudice, prior to service of process, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), for failure to state a claim upon which relief can be granted.
I. Nature of Proceedings.
Plaintiff's original complaint was not on the Court's current complaint form so he was ordered to file an amended complaint on the current form. (Doc. 3). In his amended complaint, which superseded his original complaint, Plaintiff has asserted claims against Defendants Cynthia Stewart and Walter Myers. The facts offered by Plaintiff to support his claims against Defendants Cynthia Stewart and Walter Myers are as follows. On July 26, 2011, at the rear exit door, Plaintiff stepped on a metal plate, leading out of the door, which was filled with wet mud and had spots of water on it. (Doc. 4). According to Plaintiff, he informed the warden that "the water and mud was on the steps and that's how I fell." (Id. at 4). Plaintiff also alleges that Defendant "Stewart was aware of the destroyed steps and has yet to have them fixed." (Doc. 1 at 5).
After his fall, Plaintiff attempted to stand on his foot, but could not, so he was carried to the infirmary, where he was in terrible pain. (Id. at 8). Plaintiff was taken by ambulance to USA Hospital, where he was treated and medicated, and then returned to Fountain. (Id. at 8). Plaintiff stayed in the infirmary for seventeen days with his foot and leg in pain, and was then taken to see a "bone specialist" in Bay Minette. Subsequent thereto, Plaintiff had surgery, which required the placement of ten to twelve staples in two places in his leg and his foot. (Id. at 9). Plaintiff complains that after his surgery, he was returned to Fountain where he was placed in the same wheelchair without foot supports and was "treated poorly by administration and hospital staff" because he could not have outside air but was forced to go outside and he was refused store draws and other privileges. (Id.). Plaintiff also complains that while in population, he caught a mild infection in the bone of his left leg, which caused more pain and a burning sensation. (Id.). Plaintiff contends that he "constantly went to open house to tell Defendant Stewart about these problems[;] she told [him] she would handle them." (Id.).
Plaintiff asserts that once his cast was removed and his hardware was extracted, most of his profiles were removed; thus, the officers did not take him seriously. (Id. at 9-10). He further asserts that he complained to the health care staff, doctors, and nurses about his pain and the limp he acquired. (Id. at 10). Plaintiff asserts that he also contacted I & I officer, Mrs. Shepard, who witnessed his problems, such as the mild infection, dirty bandages, and the poor conditions, and that she informed Plaintiff of his rights and said that she would inform the staff; however, the problems were persisting even at the time he signed the complaint on May 22, 2013. (Id.).
Plaintiff alleges that Defendant Stewart was negligent with respect to the deplorable living conditions at Fountain, was aware of the destroyed steps and failed to have them fixed, and failed to order proper medical care for him. (Doc. 4 at 3). He further claims that Defendant Myers acted deliberately indifferently. (Id.).
II. Standards of Review Under 28 U.S.C. § 1915(e)(2)(B).
Because Plaintiff is proceeding in forma pauperis, the Court is reviewing his complaint (Doc. 1) and amended complaint (Doc. 4) under 28 U.S.C. § 1915(e)(2)(B). Under § 1915(e)(2)(B)(i), a claim may be dismissed as "frivolous where it lacks an arguable basis in law or fact." Neitzke v. Williams , 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989). A claim is frivolous as a matter of law where, inter alia, the defendants are immune from suit, id. at 327, 109 S.Ct. at 1833, or the claim seeks to enforce a right that clearly does not exist. Id.
Moreover, a complaint may be dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted. Mitchell v. Farcass , 112 F.3d 1483, 1490 (11th Cir. 1997). To avoid dismissal for failure to state a claim upon which relief can be granted, the allegations must show plausibility. Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 557, 127 S.Ct. 1955, 1966, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads 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, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). That is, "[f]actual allegations must be enough to raise a right to relief above the speculative level" and must be a "plain statement' possess[ing] enough heft to sho[w] that the pleader is entitled to relief.'" Twombly , 550 U.S. at 555, 557, 127 S.Ct. at 1965, 1966 (second brackets in original). But "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.
When considering a pro se litigant's allegations, a court gives them a liberal construction holding them to a more lenient standard than those of an attorney. Haines v. Kerner , 404 U.S. 519, 520, 92 S.Ct. 594, 595-596, 30 L.Ed.2d 652 (1972). The court, however, does not have "license... to rewrite an otherwise deficient pleading [by a pro se litigant] in order to sustain an action." GJR Investments v. County of Escambia, Fla. , 132 F.3d 1359, 1369 (11th Cir. 1998), overruled on other grounds by Randall v. Scott , 610 F.3d 791, 710 (11th Cir. 2010) (relying on Iqbal , 556 U.S. 662, 129 S.Ct. 1937). Furthermore, the court treats as true factual allegations, but it does not treat as true conclusory assertions or a recitation of a cause of action's elements. Iqbal, 566 U.S. at 681, 129 S.Ct. at 1951. In addition, a pro se litigant "is subject to the relevant law and rules of court including the Federal Rules of Civil Procedure." Moon v. Newsome , 863 F.2d 835, 837 (11th Cir.), cert. denied, 493 U.S. 863 (1989).
A. Defendant Stewart.
In this action, it is incumbent on Plaintiff to state a plausible claim upon which relief can be granted against each Defendant. With respect to liability against a person in a supervisory position, such as Defendants Stewart and Myers, "[i]t is well established in this Circuit that supervisory officials are not liable under § 1983 for the unconstitutional acts of their subordinates on the basis of respondeat superior or vicarious liability." Cottone v. Jenne , 326 F.3d 1352, 1360 (11th Cir. 2003). Rather, a supervisor's liability occurs when the supervisor "personally participated in the alleged unconstitutional conduct or that there is a causal connection between the actions of a supervising official and the alleged constitutional deprivation." Franklin v. Curry , 738 F.3d 1246, 1249 (quotation omitted marks omitted). "A causal connection can be established in a ...