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Lindsey v. Estes

United States District Court, N.D. Alabama, Middle Division

November 20, 2018

CURTIS B. LINDSEY, Plaintiff,
v.
WARDEN ESTES, et al., Defendants.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          STACI G. CORNELIUS U.S. MAGISTRATE JUDGE.

         The 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).

         I. STANDARD OF REVIEW

         The 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).

         Under § 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.

         Moreover, 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 215.

         Pro 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 omitted).

         II. PROCEDURAL HISTORY

         On 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 prison. (Id.).

         On 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).

         III. FACTUAL ALLEGATIONS

         On 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." (Id.).

         On 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. (Id.).

         When 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. (Id.).

         On 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. (Id.).

         On 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 ...


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