Opinion
Civil Action 2:21-cv-126
05-11-2022
WYNDEL LARRY HERNDON, JR., Plaintiff, v. DR. T.J. KIDDER, et al., in their official capacities, Defendants.
REPORT AND RECOMMENDATION
BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE
Plaintiff filed this action, asserting claims under 42 U.S.C. § 1983 and the Americans with Disabilities Act (“ADA”). Doc. 1. This matter is before the Court for a frivolity screening under 28 U.S.C. § 1915A. For the reasons stated below, I RECOMMEND the Court DISMISS Plaintiff's Complaint in its entirety. Because I have recommended dismissal of all of Plaintiff's claims, I also RECOMMEND the Court DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal.
All allegations set forth here are taken from Plaintiffs Complaint. Doc. 1. During frivolity review under 28 U.S.C. § 1915A, “[t]he complaint's factual allegations must be accepted as true.” Waldman v. Conway, 871 F.3d 1283, 1289 (11th Cir. 2017).
Plaintiff brings this suit under the ADA and § 1983, alleging violations of his constitutional rights while at Glynn County Detention Center (“GCDC”) as a pretrial detainee. Doc. 1. Plaintiff complains he was denied a COVID-19 vaccination, despite multiple requests, and was then exposed to COVID-19 by another inmate. Id. at 6-9, 11. Plaintiff further explains the infected inmate was brought into the pod instead of being quarantined while awaiting tests results. Id. at 9. Once the prison staff learned the inmate was sick, he was removed from the pod and the rest of the pod also had to quarantine. Id. Plaintiff explains GCDC's refusal to provide a vaccination and his subsequent exposure may be life threatening due to his lung damage and other health concerns. Id. at 10. Plaintiff only sues Defendants in their official capacities and seeks only monetary damages as relief. Id. at 12.
STANDARD OF REVIEW
A federal court is required to conduct an initial screening of all complaints filed by prisoners and plaintiffs proceeding in forma pauperis. 28 U.S.C. §§ 1915A(a), 1915(a). During the initial screening, the court must identify any cognizable claims in the complaint. 28 U.S.C. § 1915A(b). Additionally, the court must dismiss the complaint (or any portion of the complaint) that is frivolous, malicious, fails to state a claim upon which relief may be granted, or which seeks monetary relief from a defendant who is immune from such relief. Id. The pleadings of unrepresented parties are held to a less stringent standard than those drafted by attorneys and, therefore, must be liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, Plaintiff's unrepresented status will not excuse mistakes regarding procedural rules. McNeil v. United States, 508 U.S. 106, 113 (1993).
A claim is frivolous under § 1915(e)(2)(B)(i) if it is “without arguable merit either in law or fact.” Moore v. Bargstedt, 203 Fed.Appx. 321, 323 (11th Cir. 2006) (quoting Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001)). 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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To state a claim, a complaint must contain “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not” suffice. Twombly, 550 U.S. at 555.
DISCUSSION
I. Official Capacity Claims Under § 1983
Plaintiff is suing Defendants Kidder, Dewitt, Gunderson, Kiff, and Abbott only in their official capacities and only for monetary damages. Doc. 1 at 2-4, 12. Defendants in this case are employees of the Glynn County Sheriff's Department. Plaintiff cannot sustain a § 1983 claim for monetary damages against Defendants in their official capacities. States are immune from private suits pursuant to the Eleventh Amendment and traditional principles of state sovereignty. Alden v. Maine, 527 U.S. 706, 712-13 (1999). Section 1983 does not abrogate the well-established immunities of a state from suit without its consent. Will v. Mich. Dep't of State Police, 491 U.S. 58, 67 (1989). Because a lawsuit against a state agency or a state officer in their official capacity is “no different from a suit against the [s]tate itself, ” such defendants are immune from suit under § 1983. Id. at 71. Furthermore, it is well-settled law that sheriffs and members of the sheriff department acting in a law enforcement capacity are acting on behalf of the state. See Manders v. Lee, 338 F.3d 1304, 1308 (11th Cir. 2003); Grech v. Clayton County, 335 F.3d 1326, 1347 (11th Cir. 2003) (“[T]he sheriff acts on behalf of the State in his function as a law enforcement officer . . . .”). As this Court has recognized,
Since Manders was decided in 2003, the relevant Georgia law remains essentially unchanged. Indeed, it is now ‘insurmountable' that Georgia sheriffs act as arms of the state-not as county officials . . . . In sum, Manders and its progeny dictate that where a sheriff and his deputies are performing their official and authorized duties as state actors . . . they are entitled to Eleventh Amendment immunity from a § 1983 claim for money damages or other retrospective relief brought against them in their official capacities.Frederick v. Brown, No. CV 113-176, 2015 WL 4756765, at *14 (S.D. Ga. Aug. 10, 2015) (internal citations omitted) (citing Manders, 338 F.3d at 132; Grech, 335 F.3d at 1332-40; Hall v. Fries, No. 7:13-CV-105, 2014 WL 1389063, at *4-5 (M.D. Ga. Apr. 9, 2014); Scott v. Mercier, No. 5:06-CV-33, 2007 WL 2728440 (S.D. Ga. Sept. 14, 2007); and Lewis v. Wilcox, No. 3:06-cv-29, 2007 WL 3102189, at *8 (M.D. Ga. Oct. 23, 2007)).
Here, the State of Georgia would be the real party in interest in a suit against Defendants Kidder, Dewitt, Gunderson, Kiff, and Abbott in their official capacities as employees of the Glynn County Sherriffs Department. Accordingly, the Eleventh Amendment immunizes Defendants Kidder, Dewitt, Gunderson, Kiff, and Abbott from suit for monetary damages in their official capacities. Absent a waiver of that immunity, Plaintiff cannot sustain any constitutional claims against Defendants Kidder, Dewitt, Gunderson, Kiff, and Abbott in their official capacities for monetary relief.
Therefore, the Court should DISMISS Plaintiff's § 1983 claims for monetary relief against Defendants in their official capacities. As Plaintiff only brings § 1983 claims against Defendants in their official capacities seeking monetary relief, his § 1983 claims should be dismissed.
Even considering the substance of Plaintiff s factual allegations, Plaintiff fails to point to any conduct suggesting a constitutional violation. See, e.g., Swain v. Junior, 961 F.3d 1276, 1289 (11th Cir. 2020) (concluding rising COVID-19 infection rates, failure to prevent spread, and failure to provide for social distancing in a correctional facility did not warrant preliminary injunctive relief under § 1983); Donald v. Esmond, No. 3:20CV5665, 2021 WL 2666869, at *8 (N.D. Fla. Feb. 16, 2021) (concluding pretrial detainee failed to state any constitutional violation based on spread of COVID-19 in detention facility and purported inadequacy of preventative measures and care), report and recommendation adopted subnom. McDonald v. Fountain, No. 3:20CV5665, 2021 WL 2661948 (N.D. Fla. June 29, 2021).
II. Claims Under the ADA
Plaintiff brings claims against Defendants in their official capacities for violations of the ADA. Doc. 1 at 3. Plaintiff explains he is disabled because of three plates on the left side of his head from a subdural hematoma, which causes him to suffer from seizures and inhibits his cognitive functions. Id. at 10-11.
To state a claim under Title II of the ADA, a plaintiff must allege that (1) he is a “qualified individual with a disability, ” (2) he was “excluded from participation in or . . . denied the benefit of the services, programs, or activities of a public entity, ” or otherwise “discriminated [against] by such entity, ” (3) “by reason of such disability.” 42 U.S.C. § 12132. In this case, Plaintiff has failed to allege he is being denied the benefits of a service, program, or activity at GCDC. Plaintiff explains he was not provided a COVID-19 shot, but he does not claim GCDC was offering COVID-19 shots to other inmates. Further, Plaintiff does not claim he was denied a COVID-19 shot because of his disability. Instead, Plaintiff states Defendants simply refused to honor his requests for a COVID-19 shot. Doc. 1 at 8-10. These allegations simply are not enough to state a claim under the ADA. Accordingly, I RECOMMEND the Court DISMISS Plaintiff's ADA claims against Defendants.
III. Leave to Appeal in Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. Though Plaintiff has not yet filed a notice of appeal, it is proper to address these issues in the Court's order of dismissal. See Fed. R. App. P. 24(a)(3) (trial court may certify appeal of party proceeding in forma pauperis is not taken in good faith “before or after the notice of appeal is filed”).
An appeal cannot be taken in forma pauperis if the trial court certifies the appeal is not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this context must be judged by an objective standard. Busch v. County of Volusia, 189 F.R.D. 687, 691 (M.D. Fla. 1999). A party does not proceed in good faith when he seeks to advance a frivolous claim or argument. See Coppedge v. United States, 369 U.S. 438, 445 (1962). A claim or argument is frivolous when it appears the factual allegations are clearly baseless or the legal theories are indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993). An in forma pauperis action is frivolous and not brought in good faith if it is “without arguable merit either in law or fact.” Moore v. Bargstedt, 203 Fed.Appx. 321, 323 (11th Cir. 2006) (quoting Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001)); see also Brown v. United States, Nos. 407CV085, 403CR001, 2009 WL 307872, at *1-2 (S.D. Ga. Feb. 9, 2009).
Based on the above analysis of Plaintiff's claims, there are no non-frivolous issues to raise on appeal, and an appeal on these claims would not be taken in good faith. Thus, the Court should DENY Plaintiff in forma pauperis status on appeal.
CONCLUSION
For the reasons set forth above, I RECOMMEND the Court DISMISS Plaintiff's Complaint in its entirety. Because I have recommended dismissal of all of Plaintiff's claims, I also RECOMMEND the Court DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal. I further RECOMMEND the Court DENY Plaintiff leave to proceed in forma pauperis on appeal.
Any objections to this Report and Recommendation shall be filed within 14 days of today's date. Objections shall be specific and in writing. Any objection the Magistrate Judge failed to address a contention raised in the Amended Complaint or an argument raised in a filing must be included. Failure to file timely, written objections will bar any later challenge or review of the Magistrate Judge's factual findings and legal conclusions. 28 U.S.C. § 636(b)(1)(C); Harrigan v. Metro Dade Police Dep't Station #4, 977 F.3d 1185, 1192-93 (11th Cir. 2020). To be clear, a party waives all rights to challenge the Magistrate Judge's factual findings and legal conclusions on appeal by failing to file timely, written objections. Harrigan, 977 F.3d at 119293; 11th Cir. R. 3-1. A copy of the objections must be served upon all other parties to the action.
Upon receipt of Objections meeting the specificity requirement set out above, a United States District Judge will make a de novo determination of those portions of the report, proposed findings, or recommendation to which objection is made and may accept, reject, or modify in whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not meeting the specificity requirement set out above will not be considered by a District Judge. A party may not appeal a Magistrate Judge's report and recommendation directly to the United States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final judgment entered by or at the direction of a District Judge.
SO REPORTED and RECOMMENDED, this 11th day of May, 2022.