IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION
JAMES CARLTON, : : Plaintiff : : CASE NO. 5:22-CV-291-TES-CHW VS. : : CERT OFFICER DEWITT, et al. : : PROCEEDINGS UNDER 42 U.S.C. §1983 Defendants : BEFORE THE U. S. MAGISTRATE JUDGE __________________________________
ORDER Pro se Plaintiff James Carlton, a prisoner at Rogers State Prison in Reidsville, Georgia, has filed a 42 U.S.C. § 1983 complaint. ECF No. 1. Plaintiff also filed a motion for leave to proceed in forma pauperis. ECF No. 2. MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS As it appears that Plaintiff is unable to prepay the full cost of commencing this action, his application to proceed in forma pauperis (ECF No. 2) is GRANTED. However, even if a prisoner is allowed to proceed in forma pauperis, he must nevertheless pay the full amount of the $350.00 filing fee in installments based on funds in the prisoner’s account. When a prisoner has funds in his account, he must pay an initial partial filing fee of twenty percent of the greater of (1) the average monthly deposits to the prisoner’s account, or (2) the average monthly balance in the prisoner’s account for the six month period immediately preceding the filing of the complaint. 28 U.S.C. § 1915(b)(1). A review of Plaintiff’s account certification shows that for the preceding six months, Plaintiff had an average deposit amount of $97.84. ECF No. 2 at 3. Twenty
percent of his average deposit amount is $19.57. Accordingly, if Plaintiff wishes to proceed with this action, he must pay an initial partial filing fee of $19.57. Following payment of the initial partial filing fee, money will be deducted from Plaintiff’s account until the filing fee ($350.00) is paid in full as set forth in § 1915(b) and explained below. It is accordingly DIRECTED that the CLERK forward a copy of this ORDER to the business manager of the facility in which Plaintiff is incarcerated so
that withdrawals from his account may commence as payment towards the filing fee. The district court’s filing fee is not refundable, regardless of the outcome of the case, and must therefore be paid in full even if the Plaintiff’s complaint (or any part thereof) is dismissed prior to service. It is hereby ORDERED that the warden of the institution wherein Plaintiff is
incarcerated, or the sheriff of any county wherein he is held in custody, and any successor custodians, each month cause to be remitted to the Clerk of this Court twenty percent (20%) of the preceding month’s income credited to Plaintiff’s account at said institution until the $350.00 filing fee has been paid in full. In accordance with provisions of the Prison Litigation Reform Act (“PLRA”), Plaintiff’s custodian is hereby authorized to
forward payments from the prisoner’s account to the Clerk of Court each month until the filing fee is paid in full, provided the amount in the account exceeds $10.00. It is further ORDERED that collection of monthly payments from Plaintiff’s trust fund account shall continue until the entire $350.00 has been collected, notwithstanding the dismissal of Plaintiff’s lawsuit or the granting of judgment against him prior to the collection of the full filing fee.
Pursuant to provisions of the PLRA, in the event Plaintiff is hereafter released from the custody of the State of Georgia or any county thereof, he shall remain obligated to pay any balance due on the filing fee in this proceeding until said amount has been paid in full; Plaintiff shall continue to remit monthly payments as required by the PLRA. Collection from Plaintiff of any balance due on the filing fee by any means permitted by law is hereby authorized in the event Plaintiff is released from custody and fails to remit
payments. Plaintiff’s Complaint is subject to dismissal if he has the ability to make monthly payments and fails to do so. While Plaintiff’s custodian is ordered to make subsequent payments on Plaintiff’s behalf, Plaintiff should note that it is HIS RESPONSIBLITY to pay the initial partial filing fee. Thus, Plaintiff must make arrangements with the appropriate official to ensure
that the initial partial filing fee is paid in accordance with this Order. Plaintiff shall have FOURTEEN (14) DAYS from the date shown on this Order to pay the required initial partial filing fee to the Clerk of Court. Thereafter, Plaintiff’s custodian shall remit monthly payments as set forth above. INITIAL REVIEW OF PLAINTIFF’S COMPLAINT
Pursuant to 28 U.S.C. § 1915A(a), a federal court is required to conduct an initial screening of a prisoner complaint “which seeks redress from a governmental entity or officer or employee of a governmental entity.” First, Plaintiff has named Georgia Diagnostic and Classification Prison as a Defendant. ECF No. 1 at 1 and 2. The Georgia Diagnostic and Classification Prison is not a legal entity subject to suit or liability under 42 U.S.C. § 1983. The Eleventh Amendment bars suits directly against a state or its
agencies. Stevens v. Gay, 864 F.2d 113, 115 (11th Cir. 1989) (citing Alabama v. Pugh, 438 U.S. 781, 782 (1978)). This bar applies “regardless of whether the plaintiff seeks money damages or prospective injunctive relief.” Id. (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984)). Georgia Diagnostic and Classification Prison, as an agency of the state, is thus protected by sovereign immunity. Id.; see also Will v. Mich. Dep’t of State Police, 491 U.S. 98, 71 (1989) (explaining that the state and
its agencies are not “persons” for the purposes of § 1983 liability). Second, Plaintiff’s complaint regarding the loss of his property fails to state a claim under § 1983. “A § 1983 action alleging a procedural due process clause violation requires proof of three elements: a deprivation of a constitutionally-protected liberty or property interest; state action; and constitutionally inadequate process.” Doe v. Fla. Bar,
630 F.3d 1336, 1342 (11th Cir. 2011) (quoting Cryder v. Oxendine, 24 F.3d 175, 177 (11th Cir. 1994)). As to the third element, it is recognized that ‘[d]ue process is a flexible concept that varies with the particular situation.” Cryder, 24 F.3d at 177. As to the second element of a procedural due process claim, “the state's action is not complete until and unless it provides or refuses to provide a suitable postdeprivation remedy.” Hudson v.
Palmer, 468 U.S. 517, 533 (1984). Thus, even “an unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available.” Id.; see also Case v. Eslinger, 555 F.3d 1317, 1331 (11th Cir. 2009). “Georgia provides a civil cause of action for the wrongful conversion of personal
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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION
JAMES CARLTON, : : Plaintiff : : CASE NO. 5:22-CV-291-TES-CHW VS. : : CERT OFFICER DEWITT, et al. : : PROCEEDINGS UNDER 42 U.S.C. §1983 Defendants : BEFORE THE U. S. MAGISTRATE JUDGE __________________________________
ORDER Pro se Plaintiff James Carlton, a prisoner at Rogers State Prison in Reidsville, Georgia, has filed a 42 U.S.C. § 1983 complaint. ECF No. 1. Plaintiff also filed a motion for leave to proceed in forma pauperis. ECF No. 2. MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS As it appears that Plaintiff is unable to prepay the full cost of commencing this action, his application to proceed in forma pauperis (ECF No. 2) is GRANTED. However, even if a prisoner is allowed to proceed in forma pauperis, he must nevertheless pay the full amount of the $350.00 filing fee in installments based on funds in the prisoner’s account. When a prisoner has funds in his account, he must pay an initial partial filing fee of twenty percent of the greater of (1) the average monthly deposits to the prisoner’s account, or (2) the average monthly balance in the prisoner’s account for the six month period immediately preceding the filing of the complaint. 28 U.S.C. § 1915(b)(1). A review of Plaintiff’s account certification shows that for the preceding six months, Plaintiff had an average deposit amount of $97.84. ECF No. 2 at 3. Twenty
percent of his average deposit amount is $19.57. Accordingly, if Plaintiff wishes to proceed with this action, he must pay an initial partial filing fee of $19.57. Following payment of the initial partial filing fee, money will be deducted from Plaintiff’s account until the filing fee ($350.00) is paid in full as set forth in § 1915(b) and explained below. It is accordingly DIRECTED that the CLERK forward a copy of this ORDER to the business manager of the facility in which Plaintiff is incarcerated so
that withdrawals from his account may commence as payment towards the filing fee. The district court’s filing fee is not refundable, regardless of the outcome of the case, and must therefore be paid in full even if the Plaintiff’s complaint (or any part thereof) is dismissed prior to service. It is hereby ORDERED that the warden of the institution wherein Plaintiff is
incarcerated, or the sheriff of any county wherein he is held in custody, and any successor custodians, each month cause to be remitted to the Clerk of this Court twenty percent (20%) of the preceding month’s income credited to Plaintiff’s account at said institution until the $350.00 filing fee has been paid in full. In accordance with provisions of the Prison Litigation Reform Act (“PLRA”), Plaintiff’s custodian is hereby authorized to
forward payments from the prisoner’s account to the Clerk of Court each month until the filing fee is paid in full, provided the amount in the account exceeds $10.00. It is further ORDERED that collection of monthly payments from Plaintiff’s trust fund account shall continue until the entire $350.00 has been collected, notwithstanding the dismissal of Plaintiff’s lawsuit or the granting of judgment against him prior to the collection of the full filing fee.
Pursuant to provisions of the PLRA, in the event Plaintiff is hereafter released from the custody of the State of Georgia or any county thereof, he shall remain obligated to pay any balance due on the filing fee in this proceeding until said amount has been paid in full; Plaintiff shall continue to remit monthly payments as required by the PLRA. Collection from Plaintiff of any balance due on the filing fee by any means permitted by law is hereby authorized in the event Plaintiff is released from custody and fails to remit
payments. Plaintiff’s Complaint is subject to dismissal if he has the ability to make monthly payments and fails to do so. While Plaintiff’s custodian is ordered to make subsequent payments on Plaintiff’s behalf, Plaintiff should note that it is HIS RESPONSIBLITY to pay the initial partial filing fee. Thus, Plaintiff must make arrangements with the appropriate official to ensure
that the initial partial filing fee is paid in accordance with this Order. Plaintiff shall have FOURTEEN (14) DAYS from the date shown on this Order to pay the required initial partial filing fee to the Clerk of Court. Thereafter, Plaintiff’s custodian shall remit monthly payments as set forth above. INITIAL REVIEW OF PLAINTIFF’S COMPLAINT
Pursuant to 28 U.S.C. § 1915A(a), a federal court is required to conduct an initial screening of a prisoner complaint “which seeks redress from a governmental entity or officer or employee of a governmental entity.” First, Plaintiff has named Georgia Diagnostic and Classification Prison as a Defendant. ECF No. 1 at 1 and 2. The Georgia Diagnostic and Classification Prison is not a legal entity subject to suit or liability under 42 U.S.C. § 1983. The Eleventh Amendment bars suits directly against a state or its
agencies. Stevens v. Gay, 864 F.2d 113, 115 (11th Cir. 1989) (citing Alabama v. Pugh, 438 U.S. 781, 782 (1978)). This bar applies “regardless of whether the plaintiff seeks money damages or prospective injunctive relief.” Id. (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984)). Georgia Diagnostic and Classification Prison, as an agency of the state, is thus protected by sovereign immunity. Id.; see also Will v. Mich. Dep’t of State Police, 491 U.S. 98, 71 (1989) (explaining that the state and
its agencies are not “persons” for the purposes of § 1983 liability). Second, Plaintiff’s complaint regarding the loss of his property fails to state a claim under § 1983. “A § 1983 action alleging a procedural due process clause violation requires proof of three elements: a deprivation of a constitutionally-protected liberty or property interest; state action; and constitutionally inadequate process.” Doe v. Fla. Bar,
630 F.3d 1336, 1342 (11th Cir. 2011) (quoting Cryder v. Oxendine, 24 F.3d 175, 177 (11th Cir. 1994)). As to the third element, it is recognized that ‘[d]ue process is a flexible concept that varies with the particular situation.” Cryder, 24 F.3d at 177. As to the second element of a procedural due process claim, “the state's action is not complete until and unless it provides or refuses to provide a suitable postdeprivation remedy.” Hudson v.
Palmer, 468 U.S. 517, 533 (1984). Thus, even “an unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available.” Id.; see also Case v. Eslinger, 555 F.3d 1317, 1331 (11th Cir. 2009). “Georgia provides a civil cause of action for the wrongful conversion of personal
property.” Moore v. McLaughlin, 569 F. App'x 656, 658 (11th Cir. 2014) (per curiam) (citing O.C.G.A. § 51-10-1). The Eleventh Circuit has “held that this cause of action constitutes a suitable postdeprivation remedy for procedural due process violations.” Id. Because Georgia law provides an adequate post-deprivation remedy through O.C.G.A. § 51-10-1, Plaintiff fails to state a § 1983 claim for the loss of his personal property. See McLaughlin, 569 F. App'x at 658 (concluding that the district court did not err in
dismissing Plaintiff’s procedural due process claim regarding prisoner’s stolen packages); Mines v. Barber, 610 F. App'x 838, 840 (11th Cir. 2015) (upholding district court’s dismissal of prisoner’s claim that correctional officers were illegally confiscating the prisoner’s personal property). Because Plaintiff is proceeding pro se, the Court will afford Plaintiff one
opportunity to remedy the defects in his complaint in order to state a § 1983 claim. See Duff v. Steub, 378 F. App’x 868, 872 (11th Cir. 2010) (per curiam). Plaintiff is now required to submit an amended complaint on the standard § 1983 form if he wishes to proceed. The recast complaint must contain a caption that clearly identifies by name each individual that Plaintiff has a claim against and wishes to include as a Defendant in
the present lawsuit. Plaintiff is to name only the individuals associated with the claim or related claims that he is pursuing in this action. Plaintiff must provide enough facts to plausibly demonstrate that each particular Defendants’ actions or omissions resulted in the violation of his constitutional rights. It is also recommended that, when drafting his statement of claims, Plaintiff list numbered responses to the following questions (to the extent possible) along with the name of each defendant:
(1) What did this defendant do (or not do) to violate your rights? In other words: What was the extent of this defendant’s role in the unconstitutional conduct? Was the defendant personally involved in the constitutional violation? If not, did his actions otherwise cause the unconstitutional action? How do you know?
(2) When and where did each action occur (to the extent memory allows)?
(3) How were you injured as a result of this defendant’s actions or decisions? If your injury is related to a change in the conditions of your confinement, please describe how those conditions differ from those in general population. If you have been physically injured, explain the extent of your injuries and any medical care requested or provided.
(4) How and when did this defendant learn of your injuries or otherwise become aware of a substantial risk that you could suffer a serious injury?
(5) What did this defendant do (or not do) in response to this knowledge?
Plaintiff should state his claims as simply as possible referring only to the relevant allegations against the named defendants in this case; he also need not use legal terminology or cite any specific statute or case law to state a claim, although the Court will presume that Plaintiff’s claims are brought under 42 U.S.C. § 1983 unless otherwise specified. See Fed. R. Civ. P. 8. Additionally, Plaintiff is not to include any exhibits or attachments. The complaint must be no longer than ten (10) pages. Plaintiff’s recast complaint shall take the place of and supersede all allegations made in the original complaint. Meaning, the Court will only consider the factual allegations and claims contained in Plaintiff’s recast complaint. The Court will not consider those facts contained in Plaintiff’s original complaint. Accordingly, any fact Plaintiff deems necessary to his lawsuit should be clearly stated in his recast complaint, even if Plaintiff has previously alleged it in another filing. If Plaintiff fails to link a
named Defendant to a claim, the claim will be dismissed; if Plaintiff makes no allegations in the body of his complaint against a named Defendant, that Defendant will be dismissed. CONCLUSION If Plaintiff wishes to proceed with this action, he shall have FOURTEEN (14) DAYS from the date of this Order to (1) refile his Complaint on the Court’s standard §
1983 form as instructed, and (2) pay the partial initial filing fee of $19.57. While this action is pending, Plaintiff must also immediately inform the Court in writing of any change in his mailing address. Failure to fully and timely comply with this Order may result in the dismissal of this Complaint. There will be no service of process in this case until further order of the Court.
The Clerk of Court is DIRECTED to forward Plaintiff a standard § 1983 form along with his service copy of this order (with the civil action number showing on all). SO ORDERED and DIRECTED, this 11th day of August, 2022.
s/ Charles H. Weigle Charles H. Weigle United States Magistrate Judge