United States District Court, M.D. Alabama
OPINION AND ORDER
H. THOMPSON, UNITED STATES DISTRICT JUDGE
to 42 U.S.C. § 1983, plaintiff, a state prisoner, filed
this lawsuit against several State officials after allegedly
being assaulted by another inmate. The case is now before the
court on the recommendation of the United States Magistrate
Judge that plaintiff's complaint be dismissed without
prejudice for failure to state a claim on which relief can be
granted. Although there are no objections to the
recommendation, the court, after an independent and de novo
review of the record, will allow the plaintiff an opportunity
to amend the complaint rather than dismiss it.
pro se complaint, plaintiff states that he was stabbed by
another inmate in the segregation unit's exercise area.
See Complaint (doc. no. 1) at 6 ¶ 1. He
included the names of two officers who brought him and other
prisoners into the exercise area with restraints--described
as a belly chain, leg irons, and hand cuffs--and then brought
their attacker into the same area without restraints. See
id. Based on this, plaintiff alleged “an Eight[h]
Amendment violation by the defendants due to their failure to
protect [him] from prisoner-on-prisoner violence.”
Id. at 5. But plaintiff described the two officers
as merely “negligen[t]” rather than deliberately
indifferent, id. at 6 ¶ 1, and did not name
them as defendants. Instead, he named Governor Kay Ivey,
Commissioner Jefferson Dunn, and “Commissioner
Eddington.” As a result of these omissions, the court
agrees with the magistrate judge's view that the current
allegations in the complaint fail to state a claim, and will
adopt the recommendation to that extent.
the court disagrees with the recommendation to the extent
that the magistrate judge reasoned that granting plaintiff
leave to amend the complaint would be futile. The magistrate
judge opined that, “Even if granted an opportunity to
amend his Complaint to name the guards as defendants,
Plaintiff's negligence claim against them would entitle
him to no relief.” Report and Recommendation (doc. no.
4) at 4. While plaintiff used the word
“negligent” in his complaint to describe the
actions of the officers, the court does not find this word
selection determinative. Because plaintiff is pro se and
unlearned in the law, the court will not assume that his use
of the word “negligent” reflects an intentional
choice of legal theory.
negligent acts on their own do not rise to the level of an
Eighth Amendment violation, “[a] prison official's
‘deliberate indifference' to a substantial risk of
serious harm to an inmate [does] violate the Eighth
Amendment, ” to use the language of the United States
Supreme Court in Farmer v. Brennan, 511 U.S. 825,
828 (1994). Deliberate indifference is a higher standard than
negligence and is similar to recklessness, where a person
“disregards a risk of harm of which [they are]
aware.” Id. at 837.
possible that plaintiff could amend his complaint to state a
viable Eighth Amendment deliberate-indifference claim against
the two officers if he could state facts showing that the
officers “kn[ew] of and disregard[ed] an excessive risk
to inmate health and safety” when they placed the
unshackled prisoner in the exercise area with him.
Id. Importantly, in order to state a viable claim,
“the [officers] must both be aware of facts from which
the inference could be drawn that a substantial risk of
serious harm exists, and [the officers] must also draw the
inference.” Id. However, “a factfinder
may conclude that a prison official knew of a substantial
risk from the very fact that the risk was obvious.”
Id. at 842. It also “does not matter whether
... [plaintiff] face[d] an excessive risk of attack for
reasons personal to him or because all prisoners in his
situation face such a risk.” Id. at 843.
it is ORDERED that:
recommendation of the magistrate judge (doc. no. 4) is
adopted only to the extent that it finds that the complaint,
as currently drafted, fails to state a claim for relief.
magistrate judge shall enter an appropriate order granting
the plaintiff an opportunity to file an amended complaint.
case is referred back to the United States Magistrate Judge
for further proceedings.
 The Prison Litigation Reform Act
restricts the ability of a pro se inmate such as plaintiff to
proceed in forma pauperis, and thus avoid paying any filing
fees to the clerk of court prior to the commencement of a
civil suit, “if the prisoner has, on 3 or more prior
occasions ... brought an action ... in a court of the United
States that was dismissed on the grounds that it is
frivolous, malicious, or fails to state a claim upon which
relief may be granted, unless the prisoner is under imminent
danger of serious physical injury.” 28 U.S.C. §
1915(g). The Eleventh Circuit Court of Appeals has
“issued opinions indicating that dismissals without
prejudice count as ‘strikes' under the
statute.” Nunn v. Thompson, No. 2:10CV338-WHA,
2010 WL 3829643, at *1 (M.D. Ala. Sept. 29, 2010) (Albritton,
J.) (citing Rivera v. Allin, 144 F.3d 719, 731 (11th
Cir. 1998), abrogated on different grounds by Jones v.
Bock, 549 U.S. 199 (2007)). The court notes that the
United States Supreme Court is set to determine whether a
dismissal without prejudice for failure to state a claim
should in fact properly count as a strike against prisoners
such as plaintiff. See Lomax v. ...