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Thrash v. Stewart

United States District Court, S.D. Alabama, Southern Division

August 8, 2014

THOMAS EUGENE THRASH, #255519, Plaintiff,
v.
CYNTHIA STEWART, Defendant.

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. After this action was transferred to this Court, it was referred to the undersigned for appropriate action pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(4). Upon careful review, 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. Complaint. (Doc. 1)

Plaintiff names as the sole Defendant, Cynthia Stewart, Warden of G.K. Fountain Correctional Center. (Doc. 1 at 7). His claim against her reads as follows: "Inhumanity of not helping sick inmates. No grievance procedure." (Id.). The date given for the incident is August 10, 2013. (Id. at 6, 7).

The facts offered in support of his claim are as follows. During the period of time from July to August, when Plaintiff returned from the hospital after having surgery to amputate his foot, the officers, particularly Lieutenant Lane, told him not to bother them with his request for his clothes and hygiene articles. (Id.). Thus, for three weeks, Plaintiff wore the same clothes, and was concerned because he did not want to catch staph. (Id. at 6, 11). While Plaintiff eventually received some clothes after three weeks, he did not receive a towel, a washrag, or shower slides. Thus, he was forced to borrow these items. (Id. at 11).

Plaintiff had a second surgery in August. (Id.). Afterwards, the health care providers sent Plaintiff into population where no handicap "accessory" is provided. (Id.). When Plaintiff returned to population, it took him about five days to retrieve what little property he had except that he was unable to find his borrowed towel and washrag. (Id.). Moreover, they did not give him tape or a bag so he could keep his bandage and foot dry. (Id.).

Plaintiff claims that the showers are nasty and that he does not have shower slides. (Id. at 12). Plaintiff also claims that the doctor told him that his foot was taking longer to heal because it had gotten wet. (Id.). Moreover, Plaintiff claims that he has not received pain medicine or antibiotics. (Id.). Plaintiff also asserts that he fought for this surgery for over three years, and following his surgery, he has not received any help from the health care providers at the institution. (Id.).

For relief, Plaintiff requests hygiene items, clean clothes, a grievance system for inmates, and $1.2 million for anguish and suffering. (Id. at 9).

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) 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 holds 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), but it 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 factual allegations as true, but not 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).

III. Discussion.

In this action, it is incumbent on Plaintiff to state a plausible claim upon which relief can be granted against Defendant Stewart. In order to state a § 1983 claim, a plaintiff must causally connect a defendant's actions, omissions, customs, or policies to a deprivation of his constitutional or federal rights. Zatler v. Wainwright , 802 F.2d 397, 401 (11th Cir. 1986); Williams v. Bennett , 689 F.2d 1370, 1380 (11th Cir. 1982) (same), cert. denied, 464 U.S. 932 (1983). With respect to a supervisor, § 1983 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 (11th Cir. 2013) (quotation omitted). This "causal connection can be established in a variety of circumstances, including where the supervisor's policy or custom resulted in deliberate indifference." Key v. Lundy, 2014 WL 1799800, at *2 (11th Cir. May 7, 2014) (unpublished). On the other hand, it is well-established law that "supervisory officials are not liable under § 1983 for the unconstitutional acts of ...


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