United States District Court, N.D. Alabama, Middle Division
CURTIS B. LINDSEY, Plaintiff,
WARDEN ESTES, et al., Defendants.
MAGISTRATE JUDGE'S REPORT AND
G. CORNELIUS U.S. MAGISTRATE JUDGE.
plaintiff has filed a pro se amended complaint
pursuant to 42 U.S.C. § 1983, alleging violations of his
rights under the Constitution or laws of the United States.
(Doc. 10). The amended complaint names the following
defendants: Warden Dewayne Estes, Warden Specks, Captain Gary
Malone, Lieutenant Gordy, Sergeant William McLemore, and Ms.
Thomas, Mental Health Counselor. (Id. at 1-3, 11).
The plaintiff seeks monetary and injunctive relief.
(Id. at 5-6). In accordance with the usual practices
of this court and 28 U.S.C. § 636(b)(1), the amended
complaint was referred to the undersigned for a preliminary
report and recommendation. See McCarthy v. Bronson,
500 U.S. 136 (1991).
STANDARD OF REVIEW
Prison Litigation Reform Act, as partially codified at 28
U.S.C. § 1915A, requires this court to screen complaints
filed by prisoners against government officers or employees.
The court must dismiss the complaint or any portion thereof
that it finds frivolous, malicious, seeks monetary damages
from a defendant immune from monetary relief, or does not
state a claim upon which relief can be granted. Id.
Moreover, the court may sua sponte dismiss a
prisoner's complaint prior to service. See 28
U.S.C. § 1915A(a).
§ 1915A(b)(1) and § 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 (1989). A claim is frivolous as a matter of law
where, inter alia, the defendants are immune from
suit or the claim seeks to enforce a legal right that clearly
does not exist. Id. at 327.
a complaint may be dismissed pursuant to 28 U.S.C. §
1915A (b)(1) for failure to state a claim upon which relief
may be granted. A review on this ground is governed by the
same standards as dismissals for failure to state a claim
under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
See Jones v. Bock, 549 U.S. 199, 215 (2007). In
order to state a claim upon which relief may be granted,
"a complaint must contain 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) (internal quotation marks omitted). 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
'show that the pleader is entitled to relief.'"
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557
(2007) (alteration incorporated). But "[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice."
Iqbal, 556 U.S. at 678. Similarly, when a successful
affirmative defense, such as a statute of limitations,
appears on the face of a complaint, dismissal for failure to
state a claim is also warranted. Jones, 549 U.S. at
se pleadings "are held to a less stringent standard
than pleadings drafted by attorneys" and are liberally
construed. Boxer X v. Harris, 437 F.3d 1107, 1110
(11th Cir. 2006). However, they still must allege factual
allegations that "raise a right to relief above the
speculative level." Saunders v. Duke, 766 F.3d
1262, 1266 (11th Cir. 2014) (internal quotation marks
December 7, 2017, the plaintiff initiated this action and
named as defendants Warden Estes and Sergeant McLemore. (Doc.
1 at 1). The plaintiff alleged that on September 19, 2017, he
was handcuffed behind his back when Sergeant McLemore grabbed
him around his neck and "manhood," prompting the
plaintiff to file a complaint with the Prison Rape Prevention
Program. (Id.). The original complaint alleged
officials failed to keep McLemore away from the plaintiff and
that McLemore continued to threaten and verbally harass him.
(Id. at 1-2). The original complaint alleged prison
officials completed an investigation and determined his
claims were unfounded due to the "lack of
witnesses" and prison staff's belief of
McLemore's version of events. (Id. at 2). As
relief, the plaintiff requested a restraining order against
McLemore and an order requiring transfer to a different
February 28, 2018, the undersigned entered an order: (1)
notifying the plaintiff of the inadequacies of the claims in
the original complaint: (2) requiring the plaintiff to file
an amended complaint clearly stating how each named defendant
violated his constitutional rights, including the dates and
locations of each incident; and (3) notifying the plaintiff
the amended complaint must include all of his claims and must
not refer back to the original complaint. (Doc. 9 at 1-2).
The order explicitly noted the court would only consider the
claims set forth in the amended complaint. (Id. at
2). On March 13, 2018, the plaintiff filed an amended
complaint in naming Estes, Specks, Malone, Gordy, McLemore,
and Thomas as defendants. (Doc. 10). The plaintiff alleged
McLemore threatened and verbally harassed him and that
supervisory officials failed to investigate his complaints;
he did not assert any claims concerning a sexual assault by
McLemore. (Id. at 13-19).
October 24, 2017, the plaintiff initiated a hunger strike in
order to "get a supervisor's attention"
concerning McLemore's threats and verbal harassment.
(Doc. 10 at 13). On October 27, 2017, the plaintiff spoke
with Lieutenant Rodgers, a non-party, regarding his hunger
strike and asked Rodgers to move McLemore from
segregation-the plaintiff's assigned unit. (Id.
at 13-14). Also on October 27, 2017, the plaintiff went to
the infirmary after completing a sick call slip earlier that
day. (Doc. 10 at 14). While there, the plaintiff asked
medical staff if he could notify a captain or warden of
McLemore's "er[r]atic behavior" and daily
threats. (Id.). Medical staff summoned Warden
Specks, and the plaintiff spoke with him about McLemore
"in detail;" Specks stated he would "look into
it." (Id.). The plaintiff repeatedly asked
Specks for assurances he would be transferred to a different
prison or that McLemore would be reassigned. (Id.).
Specks stated McLemore could not be reassigned because he was
harassing another officer and the plaintiff could not be
transferred due to a pending investigation. (Id.).
Specks instructed the plaintiff to go back to his dorm and
eat, but the plaintiff stated he would not end his hunger
strike until the matter with McLemore was resolved and that
he would have to "follow up with some paper work."
October 30, 2017, prison staff prepared to transfer the
plaintiff to Elmore County concerning an assault charge he
received while incarcerated at Draper Correctional Facility.
(Doc. 10 at 15). As officers were escorting the plaintiff,
McLemore looked at him angrily. (Id.). The plaintiff
told Captain Malone that McLemore was harassing and
threatening him and requested Malone "do something about
it." (Id.). Malone ignored the plaintiff.
the plaintiff returned from court in Elmore County, he was
assigned back to the D-2 side of segregation. (Doc. 10 at
15). On November 13, 2017, the plaintiff wrote a letter to
Commissioner Jefferson Dunn concerning events at the prison
but received no response. (Id. at 16). On November
16, 2017, the plaintiff wrote the Equal Justice Initiative
concerning McLemore's conduct. (Id.). On
December 7, 2017, representatives from the Equal Justice
Initiative came to the prison and spoke with the plaintiff.
January 11, 2018, between 10:30 a.m. and 11:00 a.m., Warden
Estes walked through segregation on the D-2 side. (Doc. 10 at
16). The plaintiff stopped Estes and said McLemore had been
harassing and threatening him. (Id.). When the
plaintiff asked Estes if he was going to do anything about
McLemore's behavior, Estes responded, "I got
you." (Id.). When Estes again walked by, the
plaintiff asked if he heard everything he had said earlier.
(Id.). Estes responded affirmatively and said he
would "take care of it." (Id.). However,
Estes did not take any action against McLemore.
January 20, 2018, McLemore refused to give the plaintiff a
food tray during lunch. (Doc. 10 at 16). The plaintiff claims
McLemore was retaliating against him for his complaints.
(Id.). On the same day, McLemore escorted the nurse
for evening pill call, and the plaintiff did not receive his
blood pressure ...