CHARLES H. WEIGLE, Magistrate Judge.
Before the Court are two motions: (1) a motion to dismiss filed by Defendants Clinton Perry and Walter Berry, (Doc. 16), and (2) a motion to amend filed by Plaintiff Jeremy Jay Woody. (Doc. 22). As discussed below, it is
In October 2016, this Court received from Plaintiff a standard-form Section 1983 complaint in which Plaintiff described his life as a deaf inmate at Central State Prison (CSP). (Doc. 1). Plaintiff informed the Court that his "native language [is] American Sign Language," (Doc. 1, p. 8), and Plaintiff argued that the lack of video relay service (VRS) equipment at CSP prevented Plaintiff from communicating with family and friends for a period of around three years. (Doc. 1, pp. 6-7). Much of the substance of Plaintiff's complaint related to a prison grievance Plaintiff claims to have filed regarding the lack of VRS equipment at CSP. (Doc. 1, pp. 6-13). Plaintiff also complained that the lack of sign-language interpreters at CSP prevented Plaintiff from participating in educational and training programs, led to multiple wrongful convictions for prison disciplinary infractions, and made it difficult for Plaintiff to seek treatment for two medical conditions: melanoma and a hernia. (Doc. 1, pp. 14-16). As relief, Plaintiff asked for monetary damages as well as the assistance of an interpreter, "communications with up to date technology," and "deaf advocates and deaf services at the prison." (Doc. 1, p. 17).
On screening under 28 U.S.C. § 1915A, the Court allowed Plaintiff to proceed only on a First Amendment claim, and only against two Defendants: Clinton Perry, the current CSP warden, and Walter Berry, the former CSP warden. (Doc. 6, pp. 6-7; Doc. 7, pp. 1-2). See Pope v. Hightower, 101 F.3d 1382, 1385 (11th Cir. 1996) (discussing "the First Amendment right to communicate with family and friends"). The Court determined that Plaintiff failed to state claims under Section 1983 for Eighth and Fourteenth Amendment violations. (Doc. 6, pp. 7-10). The Court also determined that Plaintiff failed to state claims based on violations of the Rehabilitation Act (RA) and the Americans with Disabilities Act (ADA). (Doc. 6, pp. 10-11).
On August 8, 2017, the same day Defendants Perry and Berry filed their joint answer, (Doc. 14), Plaintiff was released from CSP on probation. (Doc. 22, p. 1). After a period of homelessness, Plaintiff temporarily settled in Hall County, Georgia. (Doc. 22, pp. 1-3). Plaintiff states that he informally notified this Court of the change in his address "as soon as I had access to a videophone." (Doc. 22, p. 3). In a recent filing, Plaintiff has also informed the Court that he is "not fluent in English," and that he "only know[s] some words in English." (Doc. 22, pp. 4-5).
The Defendants filed their pending motion to dismiss on September 28, 2017. (Doc. 16). In that motion, the Defendants ask for a dismissal on two grounds: (1) mootness resulting from Plaintiff's release, and (2) failure to prosecute under Federal Rule of Civil Procedure 41(b). Notwithstanding Plaintiff's itinerancy and his inability to communicate fluently using the English language, Plaintiff filed a timely response to the Defendants' motion on October 23, 2017. (Docs. 17, 18). In that response, Plaintiff also informed the Court of a new change in his address: Plaintiff now resides in Clayton County, Georgia. (Doc. 18, p. 1; Doc. 22, p. 4). Plaintiff subsequently filed a motion to amend, which is also pending before the Court. (Doc. 22).
Under the circumstances, a dismissal for failure to prosecute is not warranted. Eleventh Circuit caselaw establishes a "strong preference that cases be heard on the merits," Wahl v. McIver, 773 F.2d 1169, 1174 (11th Cir. 1985), and Plaintiff's timely response to the Defendants' pending motion to dismiss makes a resolution on the merits possible. Moreover, the record establishes that Plaintiff faced ample practical difficulties upon his release from CSP— difficulties arising from Plaintiff's homelessness and from his lack of English fluency. Given these difficulties, there is ample reason to conclude that Plaintiff was unable formally to notify this Court of the change in his address based neither on Plaintiff's own misconduct nor on circumstances within Plaintiff's control. See, e.g., Link v. Wabash R. Co., 370 U.S. 626, 635 (1962). There is little reason, in other words, to conclude that Plaintiff deliberately disregarded this Court's instructions promptly to advise of any change in address. (Doc. 7, p. 4). Finally, limitations concerns may also weigh against a dismissal for failure to prosecute at this late date. See, e.g., Powell v. Harris, 628 F. App'x 679, 680-81 (11th Cir. 2015). Accordingly, insofar as the Defendants move for a dismissal based on Plaintiff's failure to prosecute, it is
The Defendants also move for a dismissal on the ground that Plaintiff's August 18, 2017 release from CSP renders moot his request for injunctive relief. (Doc. 16-1, pp. 3-5). As previously discussed, this Court allowed Plaintiff to proceed on a First Amendment claim based on allegations that the lack of up-to-date technology and other "deaf services" at CSP prevented Plaintiff from communicating with family and friends during his incarceration. (Doc. 6, pp. 6-7). The Court allowed Plaintiff to seek only prospective injunctive relief in order to "end a continuing violation of federal law." (Doc. 7, pp. 1-2). With regard to monetary damages, the Court determined that Plaintiff failed to state a claim. (Doc. 7, p. 2).
The Defendants are correct in asserting that Plaintiff's release from CSP renders his request for injunctive relief moot. See, e.g., Zatler v. Wainwright, 802 F.2d 397, 399 (11th Cir. 1986) ("In view of Zatler's subsequent release, we find that his claims for declaratory and injunctive relief are now moot"). Accordingly, insofar as the Defendants seek a dismissal of Plaintiff's First Amendment claim for injunctive relief on grounds of mootness, it is
The mootness resulting from Plaintiff's release is not dispositive of this action, however, because Plaintiff has filed a motion for leave to amend in which he seeks (i) to cure his previously-raised claims, (ii) to raise new claims relating to his current probation, and (iii) to add three new Defendants: the Georgia Department of Corrections, the Georgia Department of Community Supervision, and the Hall County Sheriff's Office. (Doc. 22). This Court must "freely give leave" to amend when justice so requires, Fed. R. Civ. P. 15(a), and requests to amend typically are denied only for reasons such as undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies, or futility. Foman v. Davis, 371 U.S. 178, 182 (1962). Pro se parties, in particular, have a strong interest in attempting to cure their claims through an amendment. See Watkins v. Hudson, 560 F. App'x 908, 911 n.2 (11th Cir. 2014).
In accordance with the analysis below, it is
As previously discussed, the Court allowed Plaintiff to seek prospective injunctive relief against Defendants Perry and Berry based on Plaintiff's inability to communicate with family and friends while incarcerated. Plaintiff's subsequent release from CSP renders his request for injunctive relief moot. The Court further ruled, on screening, that Plaintiff failed to state a claim for monetary damages because "Plaintiff failed to specify which Warden was responsible for [the denial of deaf communication services] or allege any other personal action by either Defendant Perry or Berry." (Doc. 7, p. 2). See, e.g., Brown v. Crawford, 906 F.2d 667, 671 (11th Cir. 1990) ("Supervisory liability occurs either when the supervisor personally participates in the alleged constitutional violation or when there is a causal connection between actions of the supervising official and the alleged constitutional deprivation").
Plaintiff's amended complaint does not address the Court's concerns, and it therefore does not cure Plaintiff's First Amendment deaf communication claim. While Plaintiff's new allegations provide additional details regarding the general lack of deaf services at CSP, Plaintiff's new allegations do not sufficiently show any personal action or causal connection on the part of Defendants Perry and Berry, or any other identifiable individual. See, e.g., (Doc. 22, p. 5) ("I tried to explain [my inability to use a teletypewriter (TTY)] to the guards many times, but they did not understand"); (Doc. 22, p. 5) (I again asked for help so I could use the TTY machine to contact my hearing family and friends[, but the] officers said no"); (Doc. 22, p. 6) ("I filed a grievance about not having any access to telephones in prison. . . . The prison denied this grievance"); (Doc. 22, p. 6) ("The prison violated my rights under the First Amendment"). Accordingly, insofar as Plaintiff sought to reinstate a First Amendment deaf communication claim for monetary damages, Plaintiff's motion to amend should be
Plaintiff's new allegations do appear to make out a First Amendment retaliation claim against Deputy Warden John Fagan, whom Plaintiff named as a Defendant in his initial Complaint, but this retaliation claim is barred by the applicable two-year statute of limitations. Williams v. City of Atlanta, 794 F.2d 624, 626 (11th Cir. 1986). In his amended complaint, Plaintiff asserts that Defendant Fagan "put [Plaintiff] in the hole," meaning solitary confinement, "as punishment" for filing grievances regarding a non-functioning teletypewriter. (Doc. 22, p. 11). Eleventh Circuit caselaw establishes that prison grievances regarding conditions of confinement are protected speech, and that the First Amendment proscribes disciplinary action taken in response to such grievances. O'Bryant v. Finch, 637 F.3d 1207, 1212 (11th Cir. 2011). By Plaintiff's own description, though, the alleged retaliatory action occurred "[i]n the summer of 2015." (Doc. 22, p. 11). Under the prison mailbox rule, Plaintiff filed his amended complaint on November 1, 2017, more than two years after the alleged retaliatory action occurred. (Doc. 22, p. 15). See Jackson v. Georgia, 623 F. App'x 949, 952 (11th Cir. 2015) (discussing the prison mailbox rule). Hence, Plaintiff's retaliation claim is untimely unless it relates back to his initial complaint, filed on October 20, 2016. (Doc. 1, p. 17).
Plaintiff's retaliation claim does not relate back to his initial complaint because that initial complaint (i) did not attribute any wrongful action to Defendant Fagan, see (Doc. 7, p. 3), and (ii) lacked allegations of retaliation in any form. Plaintiff's new retaliation claim does not, therefore, arise from any "conduct, transaction, or occurrence set out—or attempted to be set out" in his initial complaint. Fed. R. Civ. P. 15(c)(1)(B). See also Presnell v. Paulding Cnty., Ga, 454 F. App'x 763, 767 (11th Cir. 2011). Accordingly, insofar as Plaintiff sought to raise a First Amendment retaliation claim against Defendant Fagan, it is
Finally, insofar as Plaintiff sought to add the Georgia Department of Corrections as a Defendant to his First Amendment claims, and indeed to all of his Constitutional claims, Plaintiff's motion to amend should be
A similar analysis applies to Plaintiff's claims under the Eighth Amendment, particularly those based upon allegations of deliberate indifference to two medical conditions from which Plaintiff claims to suffer: melanoma and a hernia. Plaintiff also fails to state a claim based on the allegedly unlawful conditions he endured while in solitary confinement.
When reviewing Plaintiff's initial complaint, this Court previously determined that Plaintiff failed to allege facts showing "subjective knowledge of a risk of serious harm," as required to establish a claim of deliberate indifference to medical needs. (Doc. 6, p. 8). Plaintiff's amended complaint does not cure this defect. Although Plaintiff alleges that "guards," "doctors," "the prison" and "the defendants" frustrated Plaintiff's efforts to seek medical care by failing to accommodate Plaintiff's deafness, Plaintiff largely fails to attribute wrongful action to any identifiable individual. With regard to Defendants Perry and Berry, in particular, "imputed or collective knowledge cannot serve as the basis for a claim of deliberate indifference." See Bugge v. Roberts, 430 F. App'x 753, 758 (11th Cir. 2011) (quoting Burnette v. Taylor, 533 F.3d 1325, 1331 (11th Cir. 2008)). Thus, the Court may not impute knowledge of Plaintiff's medical conditions to Defendants Perry and Berry simply by virtue of their position as Wardens, or based on the collective knowledge of subordinate prison officials.
Plaintiff may have stated a deliberate indifference claim against a Lieutenant Basely, who was not named as a Defendant in Plaintiff's initial complaint, based upon the following allegations relating to Plaintiff's hernia:
Even if these allegations support a deliberate indifference claim, however, that claim is now barred by the two-year statute of limitations, particularly as Plaintiff's original complaint mentioned neither Lieutenant Basely nor the alleged 2013 incident. Accordingly, insofar as Plaintiff sought to state or reinstate an Eighth Amendment claim based on deliberate indifference to medical needs, it is
Plaintiff also fails to state an Eighth Amendment claim based on the conditions he endured during two stints in solitary confinement, "[o]nce . . . for a month, and once for two and a half weeks." (Doc. 22, p. 12). Plaintiff alleges that he "missed meals and showers" and "did not have enough water" as a result of his inability to hear announcements regarding the availability of food and showers, as well as the operation of a water fountain in his cell. In Plaintiff's words:
Even when accepted as true, Plaintiff's allegations fail to state a claim for two reasons. First, Plaintiff's allegations do not sufficiently establish an objectively "extreme deprivation [as] required to make out a conditions-of-confinement claim." Hudson v. McMillian, 503 U.S. 1, 9 (1992). See, e.g., Sylvestre v. Williams, 2009 WL 62650 at *1-2 (N.D. Fla. Jan. 8, 2009) (discussing missed meals); see also Ellis v. Pierce Cnty., Ga, 415 F. App'x 215, 218 (11th Cir. 2011) (finding that the denial of showers for two-week periods "d[id] not amount to a wanton and unnecessary infliction of pain") (internal punctuation omitted). Put differently, Plaintiff's allegations that food, showers and drinking water were occasionally inaccessible during separate periods of first one month, and then two and a half weeks, do not show that Plaintiff was deprived of "the minimal civilized measure of life's necessities." Hudson, 503 U.S. at 9.
Second, even if Plaintiff's allegations are sufficient to show an objectively extreme condition, Plaintiff fails to show deliberate indifference on the part of any identifiable individual. More precisely, Plaintiff fails to identify any individual who both had "knowledge of the infirm conditions," and who "knowingly or recklessly declined to take actions that would have improved the conditions." LaMarca v. Turner, 995 F.2d 1526, 1537 (11th Cir. 1993). Accordingly, insofar as Plaintiff sought to raise an Eighth Amendment conditions of confinement based on his treatment in solitary confinement, it is
Plaintiff does not appear to seek to reinstate an equal protection claim under the Fourteenth Amendment. Nevertheless, and in an abundance of caution, insofar as Plaintiff does seek to reinstate such a claim it is
The Court previously assessed a possible equal protection claim upon screening Plaintiff's initial complaint. The Court determined, based on instructive cases from other Courts, that deaf prisoners are not similarly situated to hearing prisoners for purposes of communication. (Doc. 6, p. 9). See, e.g., Hansen v. Rimel, 104 F.3d 189, 190 (8th Cir. 1997). As a result, and because equal protection claims are founded upon discriminatory treatment among persons similarly situated, the Court ruled that Plaintiff failed to state a claim. (Doc. 6, pp. 8-9).
Plaintiff's amended complaint is not responsive to the Court's prior ruling. Plaintiff does not challenge the Court's determination that deaf and hearing prisoners are not similarly situated for purposes of communication. Nor does Plaintiff allege any different treatment among deaf prisoners so as to support a "class of one" equal protection claim. See Vill. Of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Accordingly, Plaintiff's amended complaint is not curative, and therefore, Plaintiff should not be allowed to proceed on an equal protection claim under the Fourteenth Amendment.
Plaintiff also fails to state a Fourteenth Amendment due process claim based on his failure to allege facts showing an atypical and significant hardship. Sandin v. Conner, 515 U.S. 472, 483-86 (1995). In his amended complaint, Plaintiff alleges that he "was in solitary confinement twice, [o]nce . . . for a month, and once for two and a half weeks." (Doc. 22, p. 12). Plaintiff also alleges that his commissary privileges once were revoked for 60 days. (Doc. 22, p. 11). According to Plaintiff, these punishments were meted out without fair disciplinary proceedings. In one case, Plaintiff alleges he was denied a hearing altogether. (Id.). In the other case, Plaintiff alleges that his hands were "handcuffed behind my back, so I could not communicate at all . . . I could not sign, and I could not write notes." (Id.).
While the denial or effective denial of a disciplinary hearing raises due process concerns, "the Due Process Clause does not protect every change in the conditions of confinement having a substantial adverse impact on the prisoner." Sandin, 515 U.S. at 478. Plaintiff's placement in solitary confinement for the durations alleged—one month, and then two and a half weeks—does not present a dramatic departure from the basic conditions of his imprisonment. See, e.g., Smith v. Deemer, 641 F. App'x 865, 868 (11th Cir. 2016) (citing examples, and noting that "atypical and significant hardships must exist for a significant period of time"). Furthermore, and as noted by the District Court, the loss of privileges such as commissary privileges is "not deemed to be an atypical hardship." (Doc. 6, p. 9) (citing Overton v. Bazzetta, 539 U.S. 126, 136-37 (2003)). Accordingly, insofar as Plaintiff sought to reinstate a Fourteenth Amendment due process claim, it is
In contrast to his Constitutional claims raised under Section 1983, Plaintiff's claims for monetary damages under the RA and the ADA should be allowed to proceed, in part. Both the RA and the ADA permit suits by disabled persons who face discrimination on account of their disabilities. Section 504 of the RA provides, in relevant part:
Title II of the ADA similarly provides, in relevant part:
Given the similarity in these statutes' substantive provisions, "cases interpreting either [statute] are . . . interchangeable." Badillo v. Thorpe, 158 F. App'x 208, 214 (11th Cir. 2005).
Plaintiff's allegations regarding his incarceration at CSP appear to state a claim for relief under both the RA and the ADA. Due to the lack of "deaf services" at CSP, Plaintiff alleges that he was unable to participate in the following "services, programs, or activities": (i) medical treatment, (ii) educational and rehabilitative programs, see (Doc. 22, pp. 12-13), and (iii) communication services. See, e.g., Pa. Dep't of Corr. v. Yeskey, 524 U.S. 206, 210 (1998) (discussing prisoner "benefits"). Plaintiff also alleges that he was "subjected to discrimination" during a prison disciplinary hearing at which the lack of "deaf services" kept Plaintiff from understanding the course of proceedings and from meaningfully participating. (Doc. 22, p. 11). See, e.g., Duffy v. Riveland, 98 F.3d 447, 454-57 (9th Cir. 1996). Given the liberal construction accorded to pro se pleadings, Plaintiff's allegations are sufficient to warrant further briefing by the parties.
In response to Plaintiff's allegations, the Defendants cite Miller v. King, 384 F.3d 1248 (11th Cir. 2004), and argue that Eleventh Amendment immunity bars Plaintiff's RA and ADA claims. (Doc. 23, p. 5). Sovereign immunity does not bar Plaintiff's RA claims, as Congress has expressly provided that states are not immune under the Eleventh Amendment from suit for violations of the Act. See 42 U.S.C. § 2000d-7(a). Whether sovereign immunity bars Plaintiff's ADA claims is a more complicated question.
In Miller, the Eleventh Circuit held that Title II of the ADA "does not validly abrogate the States' sovereign immunity." Id., at 1267-76. Subsequently, in United States v. Georgia, 546 U.S. 151 (2006), the Supreme Court held that "Title II validly abrogates states sovereign immunity" insofar as it permits suits "for conduct that actually violates the Fourteenth Amendment." 546 U.S. at 159. United States v. Georgia did not decide whether Title II of the ADA abrogates sovereign immunity when allegedly wrongful conduct "does not independently violate the Fourteenth Amendment." Id.
Unpublished Eleventh Circuit authority strongly suggests that Title II of the ADA does not abrogate sovereign immunity absent a constitutional violation. See Redding v. Georgia, 557 F. App'x 840, 844 (11th Cir. 2014). Nevertheless, because Redding is unpublished and therefore non-binding, and because the parties have not yet had the opportunity to brief this complex and significant question of law, it would be premature to deny Plaintiff's motion to amend as futile on sovereign immunity grounds.
Accordingly, it is
Finally, although Plaintiff's RA and ADA claims relating to his incarceration at CSP should proceed, it is
Upon his release from CSP on August 8, 2017, Plaintiff alleges he "had many meetings with probation officers and sheriff's department officers," and that these officers consistently denied Plaintiff's requests for ASL interpreters. (Doc. 22, pp. 13-15). According to Plaintiff, the sheriff's department meetings, first in Hall County, and later in Clayton County, relate to a requirement that Plaintiff participate in a sex offender registry while on probation. (Doc. 22, p. 13). Without interpreters, Plaintiff asserts that he is unable to understand both the conditions of his probation and "the complicated rules about [his] sex offender status." (Doc. 22, p. 14). Hall County and Clayton County are located in the Northern District of Georgia.
For two reasons, Plaintiff's probation claims are better raised in a separate civil action. First, and as noted by the Defendants, Rule 20(a)(2) of the Federal Rules of Civil Procedure permits the joinder of defendants only when a plaintiff's "right to relief . . . aris[es] out of the same transaction, occurrence, or series of transactions or occurrences," and involves a "question of law or fact [that is] common to all defendants." Fed. R. Civ. P. 20(a)(2). While Plaintiff's probation allegations perhaps raise common issues of RA and ADA law, the factual dissimilarities between the highly secured prison environment and the less secure probation environment are too pronounced to satisfy the "series of transactions or occurrences" inquiry.
Second, this action is already over a year and a half old, and by the terms of the Court's Section 1915A screening Order, (Doc. 7, p. 4-5), the discovery period has long since expired. While Plaintiff's amended complaint may warrant an abbreviated reopening of discovery, there is every reason to anticipate that Plaintiff's RA and ADA claims relating to his prior imprisonment at CSP soon will be resolved by summary judgment or trial. By contrast, the record indicates that the factual basis for Plaintiff's probation claims continues to evolve. For example, Plaintiff informs the Court in his amended complaint that the Clayton County Sheriff's Office recently acceded to Plaintiff's requests for an interpreter. (Doc. 22, p. 14). It is therefore unclear whether Plaintiff remains entitled to seek injunctive relief on his probation claims, or whether instead Plaintiff's requests for "changes in policies (injunctive relief)" are now moot. (Doc. 22, p. 15).
In summary, given the factual distinctions between Plaintiff's incarceration and probation claims, and given the delays that will ensue by allowing Plaintiff to litigate his new and still-evolving probation claims in this mature action, Plaintiff's probation claims are better raised in a separate suit. Accordingly, insofar as Plaintiff sought to raise his probation claims in this action, it is
For the reasons discussed herein, it is
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections,
The parties are further notified that, pursuant to 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."
