Case 1:15-cv-00501-CAP-AJB Document 5 Filed 04/21/15 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

BARRY W. RAYNER, : PRISONER CIVIL RIGHTS

Plaintiff, : 42 U.S.C. § 1983
:
v. :
:
COBB COUNTY et al., : CIVIL ACTION NO.
Defendants. : 1:15-CV-501-CAP-AJB

ORDER

Plaintiff, Barry W. Rayner, confined in the Cobb County Adult Detention Center

in Marietta, Georgia, has submitted a pro se civil rights complaint pursuant to

42 U.S.C. § 1983. [Doc. 1.] Plaintiff has paid the $350.00 filing fee and $50.00

administrative fee. [See Dkt. Entry Feb. 19, 2015.] The case is now before the Court

(1) for screening under 28 U.S.C. § 1915A, and (2) on Plaintiff’s motion for

preservation of records, [Doc. 3].

I. 28 U.S.C. § 1915A Standard

The Court must screen a prisoner complaint against a governmental entity,

officer, or employee and dismiss the complaint or any portion thereof if it (1) “is

frivolous, malicious, or fails to state a claim upon which relief may be granted,” or

(2) “seeks monetary relief from a defendant who is immune from such relief.”

28 U.S.C. § 1915A(a), (b)(1) & (2). A claim is frivolous when it “lacks an arguable

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basis either in law or in fact.” Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008)

(quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)) (internal quotation marks

omitted). A complaint fails to state a claim when the factual allegations, accepted as

true, do not “raise a right to relief above the speculative level . . . .” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555-56 (2007). A viable claim must be “plausible on its face.”

Id. at 570.

In order to satisfy the plausibility standard, the plaintiff must plead “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 (2009) (citing

Twombly, 550 U.S. at 556). The Court construes the factual allegations favorably to

a pro se plaintiff and holds pro se pleadings to “less stringent standards than formal

pleadings drafted by lawyers . . . .” Erickson v. Pardus, 551 U.S. 89, 94 (2007)

(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). This leniency does not permit

the district court to act as counsel for a party or to rewrite deficient pleadings.

Lampkin-Asam v. Volusia Cnty. Sch. Bd., 261 Fed. Appx. 274, 276-77

(11th Cir. Jan. 9, 2008) (per curiam) (citing GJR Invs., Inc. v. County of Escambia, Fla.,

132 F.3d 1359, 1369 (11th Cir. 1998)); see also GJR Invs., Inc., 132 F.3d at 1369

(“Yet even in the case of pro se litigants this leniency does not give a court license to

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serve as de facto counsel for a party . . . .”).

“To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that (1) the

defendant deprived him of a right secured under the United States Constitution or

federal law, and (2) such deprivation occurred under color of state law.” Richardson

v. Johnson, 598 F.3d 734, 737 (11th Cir. 2010) (per curiam) (citing U.S. Steel, LLC v.

Tieco, Inc., 261 F.3d 1275, 1288 (11th Cir. 2001), and Arrington v. Cobb Cnty.,

139 F.3d 865, 872 (11th Cir. 1998)).

II. Discussion

Plaintiff brings this action against Cobb County; the Cobb County Adult

Detention Center; Colonel Donald L. Bartlett; WellStar Health Systems (“WellStar”);

Correctional Officers Thomas N. McCracken, Gerald Ventre, William L. Piepmeier,

Gregory R. Smith, Kevin W. Blankenship, Tarver Mygatt, and Vincent Abbott; Nurse

Jane Doe 1-5; John Doe 1-5, who may be sheriff’s deputies or a psychologist; and Cobb

County Attorney Deborah L. Dance. [Doc. 1 at 1, 4-7.]

Plaintiff alleges that he had a sinus infection causing his right eye to be swollen

shut when he arrived at the Cobb County Adult Detention Center on October 6, 2014.

[Id. at 8.] Instead of providing treatment for that infection, Officer McCracken escorted

Plaintiff to the infirmary, where unspecified male and female staff members stripped

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him naked. [Id. at 8-10.] The staff members “slapp[ed Plaintiff] repeatedly on his

buttocks and then [slid] what felt like a cold steel object up and down between the

cheeks [of his] buttocks . . . .” [Id. at 11.] On three subsequent occasions, and

apparently for no legitimate reason, McCracken and unspecified staff members threw

Plaintiff to the ground and restrained him while unspecified nurses injected him with

a drug. [Id. at 11-12, 14.] McCracken gave Plaintiff an anti-suicide suit that “appeared

soiled with human waste and smelled strongly of urine.” [Id. at 10, 11.] Plaintiff asked

for grievance forms, but his requests were denied. [Id. at 11, 19.]

On October 8, 2014, two unspecified officers warned Plaintiff that “people who

accuse jail officers of sexual assault have accidents in the jail, like slipping and falling

down stairs.” [Id. at 13, 14.] After Plaintiff’s mother complained about the conditions

of Plaintiff’s confinement, unspecified jail officials denied him “phone, visitation, and

commissary privileges,” “obstruct[ed] outgoing mail to the federal courts,” and

“[hand]cuffed and shackled [him] all day in a holding cell . . . .” [Id. at 18, 19.]

Unspecified officials also denied privileges to the entire dormitory and informed

inmates that Plaintiff was to be blamed for the denial. [Id. at 19-20.]

Plaintiff alleges that Cobb County, the Cobb County Adult Detention Center, and

Colonel Bartlett knew of prior unspecified “repeated allegations of abuse and assaultive

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misconduct toward detainees and arrestees by [jail] staff.” [Id. at 26-28.]1 Plaintiff also

alleges that Cobb County has “policies or customs of permitting the occurrence of the

kinds of wrongs set forth [in Plaintiff’s complaint].” [Id. at 26.] Plaintiff seeks

monetary, declaratory, and injunctive relief. [Id. at 31-32.]

A. Correctional Officers

Plaintiff appears to state claims against Officer McCracken for inadequate

medical care,2 violation of bodily privacy,3 excessive force,4 and unconstitutional

conditions of confinement.5 Plaintiff might state the same claims against Officers

Ventre, Piepmeier, Smith, Blankenship, Mygatt, and Abbott, but Plaintiff fails to make

specific allegations regarding the actions of those Defendants.

1
Plaintiff makes the same allegation against someone named “Warren,” but
that person is not listed as a defendant in the style of the case or the “Parties” section
of the complaint. [See Doc. 1 at 1, 4-7.]
2
See Barnes v. Martin Cnty. Sheriff’s Dep’t, 326 Fed. Appx. 533, 534-35
th
(11 Cir. May 29, 2009) (per curiam).
3
See Powell v. Barrett, 541 F.3d 1298, 1305, 1314 & n.7 (11th Cir. 2008)
(en banc); Fortner v. Thomas, 983 F.2d 1024, 1026, 1030 (11th Cir. 1993).
4
See Hudson v. McMillian, 503 U.S. 1, 6-7 (1992); Cockrell v. Sparks,
510 F.3d 1307, 1311 (11th Cir. 2007) (per curiam); Skrtich v. Thornton, 280 F.3d 1295,
1304 (11th Cir. 2002).
5
See Farmer v. Brennan, 511 U.S. 825, 832, 834, 837 (1994); Boxer X v.
Harris, 437 F.3d 1107, 1111 (11th Cir. 2006).

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Accordingly, the undersigned will give Plaintiff an opportunity to submit an

amended complaint within thirty (30) days of the date of this Order. See Bryant v.

Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001) (per curiam) (holding that “[w]here a

more carefully drafted complaint might state a claim, a plaintiff must be given at least

one chance to amend the complaint before the district court dismisses the action with

prejudice”) (citing Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991)). Plaintiff shall

note the following instructions under the heading “Statement of Claim” on page 3 of

this Court’s form § 1983 complaint: “State here as briefly as possible the facts of your

case. Describe how each defendant is involved. . . . Do not give any legal arguments

or cite any cases or statutes.” Plaintiff should include his allegations against

McCracken in the amended complaint.

B. Colonel Bartlett

A supervisor does not have respondeat superior or vicarious liability under

§ 1983 for subordinates’ unconstitutional conduct unless the supervisor personally

participates in the conduct or a causal connection exists between the supervisor’s

actions and the unconstitutional conduct. Cottone v. Jenne, 326 F.3d 1352, 1360

(11th Cir. 2003). A causal connection can be shown if (1) the supervisor is on notice

of historical widespread abuse and fails to take corrective action, (2) the supervisor has

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a custom or policy that results in the alleged constitutional violation, or (3) “facts

support an inference that the supervisor directed the subordinates to act unlawfully or

knew that the subordinates would act unlawfully and failed to stop them from doing

so.” Id. (internal quotation marks omitted).

Plaintiff alleges that Bartlett knew of prior unspecified “repeated allegations of

abuse and assaultive misconduct toward detainees and arrestees by [jail] staff.”

[Id. at 26-28.] That allegation falls short of establishing a causal connection between

Bartlett’s actions and McCracken’s unconstitutional conduct. Plaintiff may address this

deficiency in his amended complaint.

C. Cobb County

“A local government may be sued under 42 U.S.C. § 1983 for depriving an

individual of his constitutional rights only if the alleged injury is caused by an official

policy or custom.” Jordan v. Conway, 441 Fed. Appx. 761, 764 (11th Cir. Oct. 3, 2011)

(per curiam) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)). Plaintiff

alleges that Cobb County has “policies or customs of permitting the occurrence of the

kinds of wrongs set forth [in Plaintiff’s complaint].” [Id. at 26.] However, Plaintiff

fails to allege specific facts regarding the relevant policies or customs. Plaintiff may

address this deficiency in his amended complaint.

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D. Remaining Defendants

Plaintiff may not sue the Cobb County Adult Detention Center because a

detention center or jail “is not an entity capable of being sued under Georgia law.”

Brannon v. Thomas Cnty. Jail, 280 Fed. Appx. 930, 934 n.1 (11th Cir. June 9, 2008)

(per curiam).

To the extent that Plaintiff states any claims against Nurse Jane Doe 1-5, or John

Doe 1-5, fictitious-party pleading generally is not permitted in federal court. See

Richardson, 598 F.3d at 738.6 Plaintiff must identify or sufficiently describe each

Defendant and his or her alleged actions. See id. (affirming dismissal of claim for

failure to identify prison guard). Plaintiff makes no allegations against WellStar or

Attorney Dance. Plaintiff may address these deficiencies in his amended complaint.

6
There is “a limited exception to this rule when the plaintiff’s description
of the defendant is so specific as to be at the very worst, surplusage.” Richardson,
598 F.3d at 738 (quoting Dean v. Barber, 951 F.2d 1210, 1215-16 (11th Cir. 1992))
(internal quotation marks omitted). “There may be times when . . . the plaintiff is
unwilling or unable to use a party’s real name. Also, one may be able to describe an
individual . . . without stating his name precisely or correctly.” Dean,
951 F.2d at 1215-16 (citation, footnote, and internal quotation marks omitted); see also
Moulds v. Bullard, 345 Fed. Appx. 387, 390 (11th Cir. Aug. 17, 2009) (per curiam)
(affirming dismissal of claims against fictitious parties because plaintiff completely
failed to describe some officers, only generally described duty stations of others, and
failed to timely request discovery to learn identities).

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E. Remaining Claims

Plaintiff does not state a claim based on the alleged denial of access to grievance

forms because “a prisoner does not have a constitutionally-protected liberty interest in

an inmate grievance procedure.” Thomas v. Warner, 237 Fed. Appx. 435, 437-38

(11th Cir. June 5, 2007) (per curiam).

Although Plaintiff appears to state retaliation claims,7 he fails to specify the

defendants who retaliated against him. The Court is authorized to dismiss a claim when

the plaintiff fails to identify or sufficiently describe the defendant against whom the

claim is brought. See Richardson, 598 F.3d at 738. Plaintiff may address this

deficiency in his amended complaint.

Finally, Plaintiff claims that Defendants engaged in a conspiracy. [See id. at 29-

30.] However, Plaintiff has not alleged any facts showing an agreement to violate his

constitutional rights. See Myers v. Bowman, 713 F.3d 1319, 1332 (11th Cir. 2013).

Plaintiff may address this deficiency in his amended complaint.

III. Motion for Preservation of Records

Plaintiff seeks an order requiring Defendants to preserve all records relating to

this case. [Doc. 3 at 1-2.] Because Plaintiff may file an amended complaint, and the

7
See Douglas v. Yates, 535 F.3d 1316, 1321 (11th Cir. 2008).

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Court has not completed the 28 U.S.C. § 1915A screening of this action, Plaintiff’s

motion for preservation of records, [Doc. 3], is DENIED WITHOUT PREJUDICE.

IV. Conclusion

For the reasons stated above,

IT IS ORDERED that (1) Plaintiff’s motion for preservation of records,

[Doc. 3], is DENIED WITHOUT PREJUDICE; and (2) Plaintiff may file an

amended complaint within thirty (30) days of the date of this Order. Plaintiff’s

amended complaint will replace his original complaint. See Lowery v. Ala. Power Co.,

483 F.3d 1184, 1219 (11th Cir. 2007) (“Under . . . federal law, an amended complaint

supersedes the initial complaint and becomes the operative pleading in the case.”).

Plaintiff is REQUIRED to keep the Court advised of his current address and

telephone number at all times while his lawsuit is pending, and failure to do so shall

result in the dismissal of this action pursuant to Local Rule 41.2C, N.D. Ga. Plaintiff’s

failure to comply with any aspect of this Order may result in the dismissal of this action

pursuant to Local Rule 41.3, N.D. Ga.

The Clerk is DIRECTED to send Plaintiff a form § 1983 complaint stamped

with the case number for this action and to RESUBMIT this action to the undersigned

Magistrate Judge upon receipt of an amended complaint or the expiration of the thirty-

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day time period.

IT IS SO ORDERED, this 21st day of April, 2015.

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