IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA WAYCROSS DIVISION

MARTY LAMAR BAIRD,

Plaintiff, CIVIL ACTION NO.: 5:20-cv-10

v.

MRS. DAVIS; ANGUS BAREFOOT; RICKY STONE; and UPTON, all in their individual and official capacities,

Defendants.

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION Plaintiff filed this action, asserting claims under

. 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 official capacity monetary damages claims against Defendants. However, I FIND that some of Plaintiff’s claims may proceed. Specifically, the Court will direct service of Plaintiff’s Eighth Amendment deliberate indifference to a serious medical need claim against Defendants. PLAINTIFF’S CLAIMS1 Plaintiff is currently incarcerated at Phillips State Prison. Doc. 4. Plaintiff brings this action, asserting claims under § 1983 for events occurring while he was incarcerated at Coffee Correctional Facility. Doc. 1. Plaintiff states that, when he arrived at Coffee Correctional Facility, his medical profiles were discarded. Id. at 5. Plaintiff then received a “call out” to

1 All allegations set forth here are taken from Plaintiff’s Second Amended Complaint. Doc. 10. During frivolity review under 28 U.S.C. § 1915A, “[t]he complaint’s factual allegations must be accepted as true.” Waldman v. Conway,

(11th Cir. 2017). intake.

At intake, Defendant Davis showed Plaintiff his medical braces and asked Plaintiff what he would like done with them.

Plaintiff told Defendant Davis he needed his braces, but Defendant Davis stated they would first have to be approved by medical.

Plaintiff, however, never received his back and knee braces and was later informed the facility had lost his braces.

Since being informed his braces were lost, Plaintiff has sent requests or grievances to Defendants Stone, Upton, and Barefoot, as well as several other individuals not named as Defendants, alerting them of his need for his medical braces. Id. at 5, 9. Because Plaintiff has been deprived of his braces, he has experienced significant pain. Id. at 5, 6. Plaintiff sues all Defendants in their official and individual capacities and seeks as relief new braces or monetary damages. Id. at 2–3, 6. 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,

(1972). However, Plaintiff’s unrepresented status will not excuse mistakes regarding procedural rules. McNeil v. United States,

(1993). A claim is frivolous under § 1915(e)(2)(B)(i) if it is “without arguable merit either in law or fact.” Napier v. Preslicka,

(11th Cir. 2002) (quoting Bilal v. Driver,

(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,

(2009) (quoting Bell Atl. Corp. v. Twombly,

(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,

. DISCUSSION Plaintiff is suing all Defendants in both their individual and official capacities. Doc. 1. Plaintiff, however, 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,

, 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,

(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. Here, the State of Georgia would be the real party in interest in a suit against Defendants in their official capacities as employees of Georgia’s Department of Corrections. The Eleventh Amendment immunizes Defendants from suit for monetary damages in their official capacities. Absent a waiver of that immunity, Plaintiff cannot sustain any constitutional claims against Defendants in their official capacities for monetary relief. Accordingly, I RECOMMEND the Court DISMISS all claims for monetary damages against Defendants in their official capacities under § 1983. CONCLUSION For the reasons set forth above, I RECOMMEND the Court DISMISS Plaintiff’s official capacity monetary damages claims against Defendants. However, I FIND that some of Plaintiff’s claims may proceed. Specifically, the Court will direct service of Plaintiff’s Eighth

Amendment deliberate indifference to a serious medical need claim against Defendants. 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 that the Magistrate Judge failed to address a contention raised in the Complaint 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.

(b)(1)(C); Harrigan v. Metro Dade Police Dep’t Station #4, No. 17-11264,

, at *4 (11th Cir. Oct. 13, 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,

, at *4; 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 14th day of December, 2020.

BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OF GEORGIA