McCarty v. Stewart

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

MAURICE MCCARTY, #272773, :

Plaintiff, :

vs. : CIVIL ACTION NO. 20-00229-CG-B

CYNTHIA STEWART , :

Defendants. :

REPORT AND RECOMMENDATION

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 S.D. Ala. GenLR

72(a)(2)(R). It is recommended that this action be dismissed

without prejudice, prior to service of process, for failure to

state a claim upon which relief could be granted.

I. Proceedings.

A. Complaint. (Doc.1, PageID.1).

In McCarty’s original complaint (Doc. 1, PageID.1), he named

Cynthia Stewart, Holman Correctional Facility’s warden, as the

sole Defendant. McCarty claimed that on August 11, 2019, he was

accused of assault without a weapon even though the victims gave

affidavits that he did not assault them, and the camera inside the

dorm did not place him at the scene. (Id. at 3, PageID.3). McCarty

alleged that, without reviewing the camera footage to verify the

allegations, Defendant Stewart “placed” him in a segregation cell

in which nothing worked. (Id. at 4, PageID.4). He further alleged

that he could not drink the water and that the lights in the cell,

and the ventilation and heat system, were not working. McCarty

alleged that this caused him to have high blood pressure and become

sick. (Id.). For relief, McCarty sought $80,000 in punitive and

compensatory damages. (Id. at 6, PageID.6).

B. Screening of Complaint and Order to Amend. (Doc. 9,

PageId.28).

Because McCarty is proceeding in forma pauperis, the Court

was required to screen his complaint under 28 U.S.C. §

1915(e)(2)(B)(i-iii). In screening his complaint, the Court, in

an order dated February 4, 2021, found that McCarty did not allege

a plausible claim against Defendant Stewart; therefore, the action

was subject to dismissal. (Doc. 9 at 1, PageID.28).

Based on the allegations in McCarty’s complaint, the Court

construed McCarty’s claim as one for a violation of the Eighth

Amendment. (Id. at 3, PageID.30). The Court specifically advised

McCarty of the elements for pleading an Eighth Amendment claim

based on conditions of confinement, including that he must prove

that the condition of which he complained was sufficiently serious

to violate the Eighth Amendment, i.e., that it must be extreme;

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and that he must prove that Defendant Stewart acted with deliberate

indifference with respect to the condition at issue, that is, that

Stewart knew of and disregarded an excessive risk to his health or

safety by conduct that was more than gross negligence. (Id. at 3-

4, PageID.30, 31); see generally Farmer v. Brennan, 511 U.S. 825,

828 (1994).

The Court also informed McCarty of the specific factual

deficiencies in his complaint in relation to the elements required

to plausibly plead an Eighth Amendment conditions of confinement

claim. Specifically, the Court noted that McCarty’s complaint did

not indicate that Stewart actually placed McCarty in his cell or

that she knew that the cell was not working in regard to water,

lights, and ventilation; the complaint did not indicate that

McCarty was not given water to drink or that he had no access to

a toilet, shower, and sink; the complaint did not indicate the

numbers of days that he was in the cell; the complaint did not

indicate the ventilation that was available in his cell or the

type of ventilation that was previously there but had since broken;

the complaint did not indicate the temperature in the cell and/or

the temperature outdoors; the complaint did not indicate whether

McCarty was being treated for high blood pressure and/or whether

he received his medication while in the cell; and the complaint

did not indicate the illness of which he complained and how he was

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treated for it. (Id. at 5, PageID.32).

The Court further advised McCarty of the general pleading

requirements for stating a claim under Rule 8(a), see Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d

929 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937,

173 L.Ed.2d 868 (2009), and for pleading a § 1983 claim. Zatler v.

Wainwright, 802 F.2d 397, 401 (11th Cir. 1986); Williams v.

Bennett, 689 F.2d 1370, 1380 (11th Cir.), cert. denied, 464 U.S.

932 (1983). (Id. at 5-6, PageID.32, 33).

Rather than recommending the dismissal of McCarty’s deficient

original complaint, the Court granted him leave to file an amended

complaint. (Id.). McCarty was warned that his failure to file a

complying amendment within the required time would result in the

dismissal of his action. (Id. at 2, PageID.29).

C. Amended Complaint. (Doc. 10, PageID.35).

McCarty filed an amended complaint and named as Defendants,

Lt. Banks, Sgt. Earl, and Lt. Ashley Kidd. (Id. at 5, PageID.39).

Cynthia Stewart was no longer listed as a Defendant. The date of

the alleged incident was again listed as August 11, 2019. (Id. at

4, PageID.38). As best the Court can discern, it appears that, in

the amended complaint, McCarty has shifted his focus from an Eighth

Amendment claim regarding the conditions of his confinement to a

Fourteenth Amendment claim regarding a disciplinary proceeding.

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According to McCarty, even though he denied any personal

involvement in the assault that was being investigated, and the

victims reported that they had the “wrong man,” Cynthia Stewart

stated that she did not care and directed that McCarty be found

guilty and locked up. (Id. at 4, PageID.38). McCarty alleges that

he was placed in Cell M-55 at Holman, which is a lock-up cell that

is known as not fit to live in. (Id.). He became very sick, lost

about thirty pounds in three weeks, attempted suicide, had high

blood pressure, and became depressed. (Id.). McCarty asserts

that he felt as though he had no help to prove his innocence and

that lines 1 through 5 of his disciplinary should be corrected and

that line 2 is “clearly wrong.” (Id.). While McCarty referenced

the disciplinary report, he did not attach a copy of his

disciplinary report to his amended complaint.

In the amended complaint, McCarty alleges that Defendant

Banks placed him in the cell because Stewart told Banks to lock

him up, and no other cell was available. (Id. at 5, PageID.39).

He also alleges that Defendant Earl knew about the cell and

McCarty’s witnesses, but “[s]he made him do it and wrote him up

for trying to help.” (Id.). According to McCarty, “Cynthia

Stewart told arresting offic[er] Lt. Ashley Kidd to write Earl up

again if he tr[ies] to help [McCarty].” (Id.). McCarty further

alleges that Defendant Kidd, the arresting officer, disregarded

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the victims’ statements, and this resulted in McCarty being thrown

in lock-up. (Id. at 6, PageID.40). McCarty asserts that Defendant

Kidd admitted that they do what Stewart says even if it is wrong,

and McCarty questions “[s]o how is Cynthia don't have nothing to

do with [me] being mistreated.” (Id.). For relief, McCarty seeks

$80,000 in compensatory and punitive damages. (Id. at 7,

PageID.41).

II. Standards of Review Under 28 U.S.C. § 1915(e)(2)(B).

As noted, because McCarty is proceeding in forma pauperis,

the Court is must screen his amended complaint (Doc. 10, PageID.35)

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 Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127

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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. Furthermore, 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 v. Bock, 549 U.S. 199, 215, 127 S.Ct. 910,

920-21, 166 L.Ed.2d 798 (2007).

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, Tannenbaum v. U.S., 148 F.3d

1262, 1263 (11th Cir. 1998), but “this leniency does not give a

court license to serve as de facto counsel for a party, or to

rewrite an otherwise deficient pleading in order to sustain an

action.” Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1168–69

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(11th Cir.) (citation and quotation marks omitted), cert. denied,

574 U.S. 1047 (2014). Furthermore, a 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. 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.

As noted above, McCarty’s original complaint did not present

a plausible claim against Defendant Stewart; thus, he was given an

opportunity to amend his complaint in order to avoid its dismissal.

McCarty was advised at length regarding his pleading deficiencies

and ordered to file an amended complaint that complied with Rule

8(a) of the Federal Rules of Civil Procedure and stated a plausible

claim.1 (Doc. 9, PageID.28).

Notwithstanding the Court’s directives, in his amended

1 See Jemison v. Mitchell, 380 Fed. Appx. 904, 907 (11th Cir. 2010)

(“When it appears that pro se plaintiff’s complaint, if more

carefully drafted, might state a claim, the district court should

give the pro se plaintiff an opportunity to amend his complaint

instead of dismissing it with prejudice.”); Duong Thanh Ho v.

Costello, 757 Fed. Appx. 912 (11th Cir. 2018) (affirming the

dismissal of the complaint as the magistrate judge’s order

expressly informed the plaintiff of the deficiencies in his

complaint and of the rules he needed to follow in filing an amended

complaint and that the failure to do so would result in dismissal,

but he failed to file an amended complaint).

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complaint, McCarty named three new persons as Defendants, dropped

Cynthia Stewart as a Defendant, and failed to develop his

conditions-of-confinement claim against Stewart or any of the

other newly named Defendants. Instead, the allegations in

McCarty’s amended complaint concern Stewart’s alleged order

directing the three Defendants to place McCarty in the cell, to

write him up (i.e., charge him with a disciplinary violation), and

to find him guilty of the disciplinary charge, even though he was

innocent. McCarty makes no mention of the specific conditions of

the cell so as to establish that the conditions were extreme and

deprived him “of the minimal civilized measure of life’s

necessities.” Chandler v. Crosby, 379 F.3d 1278, 198 (11th Cir.

2004); Saunders v. Sheriff of Brevard Cnty., 735 Fed. Appx. 559,

(11th Cir.)2, cert. denied, 139 S. Ct. 1325 (2019). Significantly,

he also failed to advise the Court as to the actual duration of

his confinement in the cell or to connect an injury to the alleged

deprivation in his amended complaint. See Jordan v. Doe, 38 F.3d

1559, 1564-65 (11th Cir. 1994)(a deprivation of a single human

need if sufficiently severe will constitute a deprivation of the

minimal civilized measure of life’s necessities as informed by

contemporary standards of decency).

2 “Unpublished opinions are not considered binding precedent, but

they may be cited as persuasive authority.” 11TH CIR. R. 36-2.

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Here, like his original complaint, McCarty’s amended

complaint does not comply with Rule 8(a) in that it does not

contain a plausible claim upon which relief may be granted. In

his amended complaint, McCarty complains about the roles

Defendants Kidd and Earl played in his disciplinary proceeding.

However, he provides no information about the nature of the

disciplinary nor the sentence he received.

To allege a due process claim based on a disciplinary

proceeding, there must be a deprivation of a liberty interest.

Sandin v. Conner, 515 U.S. 472, 484 (1995). In Sandin, the Supreme

Court held that liberty interests “will be generally limited to

freedom from restraint which, while not exceeding the sentence in

such an unexpected manner as to give rise to protection by the Due

Process Clause of its own force, . . . , nonetheless imposes

atypical and significant hardship on the inmate in relation to the

ordinary incidents of prison life.” Id. at 480, 484 (citations

omitted). The Court concluded that the prisoner’s thirty-day

confinement to disciplinary segregation was not a dramatic

departure from the ordinary conditions of his incarceration, was

the type of discipline he should expect as an incident to his

criminal sentence, and “did not present the type of atypical,

significant deprivation in which a state might conceivably create

a liberty interest.” Id. at 485-86. Accordingly, in order to

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find a liberty interest, the atypical and significant hardship

must exist for a significant length of time, Smith v. Deemer, 641

Fed. Appx. 865, 868 (11th Cir. 2016), and the atypical and

significant hardship must be harsh in comparison to the general

population prison. Wilkinson v. Austin, 545 U.S. 209, 223-24

(2005). Here, McCarty does not allege that his term of

imprisonment was unexpectedly altered by the disciplinary or that

he lost good-time credit. Magluata v. Samples, 375 F.3d 1269,

1282 (llth Cir. 2004). He also offers no facts regarding the

actual length of his confinement, nor does he describe any

operational differences between where he was placed as a result of

the disciplinary and where he was housed before the disciplinary

hearing. Simply put, McCarty has failed to plausibly allege that

he was deprived of a liberty interest, and in the absence of a

liberty interest, any claims about the initiation of, conduct of,

and result of his disciplinary hearing fail to state a plausible

claim upon which relief can be granted.

The Court also notes that McCarty contends that Defendant

Banks followed Cynthia Stewart’s order to put McCarty in a cell

and placed him in the only available cell. Following a supervising

official’s order and placing a plaintiff in the only available

cell does not reflect the deliberate indifference necessary for

stating an Eighth Amendment violation. Farmer v. Brennan, 511

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U.S. at 837-38. Cf. Jordan, 38 F.3d at 1567 (finding the marshal

was entitled to qualified immunity because absent a court ruling,

he “would not have understood his actions [of placing Jordan in

the jails] to violate Jordan’s constitutional rights in light of

the clearly established law at that time”); Lee v. Blackmon, 2016

U.S. Dist. LEXIS 22418, 2016 WL 749173, at *6 (N.D. Fla. Jan. 22,

2016) (“Nurses and other such prison personnel are not deliberately

indifferent when they reasonably follow the orders of a doctor or

other supervisory medical personnel.”); Vela v. White, 703 F.3d

147, 152 (5th Cir. 1983)(finding the officer was entitled to

qualified immunity because he was following an order of his

supervisor in arresting the plaintiff and there was no indication

that he bore any ill-will to the plaintiff). Without a court

decision holding that the reason for the placement was

unconstitutional or that the conditions (for which there is no

information in the amended complaint) were unconstitutional,

McCarty has not alleged a plausible claim against Defendant Banks

for a violation of his constitutional rights as no deliberate

indifference is shown on his part.

In sum, McCarty has not complied with Rule 8(a)’s requirement

of pleading “a short and plain statement” showing that he is

entitled to relief. FED.R.CIV.P. 8(a)(2). That is, he has not

pled a complaint in this action that contains sufficient factual

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matter, taken as true, that states a claim that is plausible on

its face. Iqbal, 556 U.S. at 678. Because McCarty was given the

opportunity to amend his complaint and correct the noted

deficiencies so as to be able to state a plausible claim against

the Defendants, and yet has not done so, it is recommended that

this action be dismissed without prejudice for failure to state a

claim upon which relief could be granted. See Britt v. United

States Gov’t, 773 Fed. Appx. 494, 495 (11th Cir. 2019)(affirming

the action’s dismissal for failure to file an amended complaint

that complied with Rule 8). To the extent that McCarty believes

that he can correct the deficiencies noted in the Court’s orders

and that he can file a complaint that complies with the pleading

requirements of Rule 8, then he must file his complying complaint

along with objections to this Report and Recommendation.

IV. Conclusion.

Based upon the foregoing reasons, it is recommended that this

action be dismissed without prejudice, prior to service of process,

for failure to state a claim upon which relief could be granted.

NOTICE OF RIGHT TO FILE OBJECTIONS

A copy of this report and recommendation shall be served on

all parties in the manner provided by law. Any party who objects

to this recommendation or anything in it must, within fourteen

(14) days of the date of service of this document, file specific

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written objections with the Clerk of this Court. See 28 U.S.C. §

636(b)(1); FED.R.CIV.P. 72(b); S.D. Ala. Gen.LR 72(c). The parties

should note that under Eleventh Circuit Rule 3-1, “[a] party

failing to object to a magistrate judge’s findings or

recommendations contained in a report and recommendation in

accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the

right to challenge on appeal the district court's order based on

unobjected-to factual and legal conclusions if the party was

informed of the time period for objecting and the consequences on

appeal for failing to object. In the absence of a proper objection,

however, the court may review on appeal for plain error if

necessary in the interests of justice.” 11th Cir. R. 3-1. In

order to be specific, an objection must identify the specific

finding or recommendation to which objection is made, state the

basis for the objection, and specify the place in the Magistrate

Judge’s report and recommendation where the disputed determination

is found. An objection that merely incorporates by reference or

refers to the briefing before the Magistrate Judge is not specific.

Ordered this 22nd day of April, 2021.

/s/ SONJA F. BIVINS

UNITED STATES MAGISTRATE JUDGE

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