IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION

RICHARD MELVIN GOODMAN, : : Plaintiff : : CASE NO. 5:24-cv-456-MTT-CHW VS. : : Deputy Warden GARDNER, : OIC WILLIAMS, : Cert Member ISOM, : : PROCEEDINGS UNDER

Defendants : BEFORE THE U. S. MAGISTRATE JUDGE ____________________________

ORDER Pro se Plaintiff Richard Melvin Goodman, a prisoner at Central State Prison in Macon, Georgia, has filed a complaint seeking relief under

. ECF No. 1. He also requests leave to proceed in forma pauperis (“IFP”). ECF Nos. 2 and 9. Plaintiff’s motions for leave to proceed IFP are GRANTED, as discussed below, and thus, his complaint is ripe for preliminary review. Upon such a review, Plaintiff may proceed with his Eighth Amendment excessive force claim against Defendant Isom and with his Eighth Amendment failure to intervene claim against Defendants Williams and Gardner. MOTION FOR LEAVE TO PROCEED IFP Plaintiff seeks leave to proceed without prepayment of the filing fee or security therefor pursuant to

(a). ECF Nos. 2 and 9. As it appears Plaintiff is unable to pay the cost of commencing this action, his application to proceed IFP is hereby GRANTED. However, even if a prisoner is allowed to proceed IFP, he must nevertheless pay the full amount of the $350.00 filing fee.

(b)(1). If the prisoner has

sufficient assets, he must pay the filing fee in a lump sum. If sufficient assets are not in the account, the court must assess an initial partial filing fee based on the assets available. Despite this requirement, a prisoner may not be prohibited from bringing a civil action because he has no assets and no means by which to pay the initial partial filing fee.

(b)(4). In the event the prisoner has no assets, payment of the partial filing fee prior to filing will be waived.

Plaintiff’s submissions indicate that he is unable to pay the initial partial filing fee. Accordingly, it is hereby ORDERED that his complaint be filed and that he be allowed to proceed without paying an initial partial filing fee. I. Directions to Plaintiff’s Custodian Plaintiff is required to make monthly payments of 20% of the deposits made to his

prisoner account during the preceding month toward the full filing fee. The clerk of court is DIRECTED to send a copy of this Order to the business manager of the facility in which Plaintiff is incarcerated. It is ORDERED that the warden of the institution in which Plaintiff is incarcerated, or the sheriff of any county in which he is held in custody, and any successor custodians, shall 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.

(b)(2). In accordance with provisions of the Prison Litigation Reform Act (“PLRA”), Plaintiff’s

2 custodian is 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 ORDERED that collection of monthly payments from Plaintiff’s trust fund account 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. II. Plaintiff’s Obligations Upon Release Plaintiff should keep in mind that his release from incarceration/detention does not

release him from his obligation to pay the installments incurred while he was in custody. Plaintiff remains obligated to pay those installments justified by the income in his prisoner trust account while he was detained. If Plaintiff fails to remit such payments, the Court authorizes collection from Plaintiff of any balance due on these payments by any means permitted by law. Plaintiff’s Complaint may be dismissed if he is able to make payments

but fails to do so or if he otherwise fails to comply with the provisions of the PLRA. PRELIMINARY REVIEW OF PLAINTIFF’S COMPLAINT I. Standard of Review The PLRA directs courts to conduct a preliminary screening of every complaint filed by a prisoner who seeks redress from a government entity, official, or employee. 28

U.S.C. § 1915A(a). Courts must also screen complaints filed by a plaintiff proceeding IFP.

(e). Both statutes apply in this case, and the standard of review is the same. “Pro se filings are generally held to a less stringent standard than those drafted

3 by attorneys and are liberally construed.” Carmichael v. United States,

(11th Cir. 2020) (citation omitted). Still, the Court must dismiss a prisoner

complaint 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(b); see also

(e). A claim is frivolous if it “lacks an arguable basis either in law or in fact.” Miller v. Donald,

(11th Cir. 2008) (citations omitted). On preliminary review, the Court may dismiss claims that are based on “indisputably meritless legal”

theories and “claims whose factual contentions are clearly baseless.”

(citations omitted). A claim can be dismissed as malicious if it is knowingly duplicative or otherwise amounts to an abuse of the judicial process. Daker v. Ward,

(11th Cir. 2021) (affirming dismissal of duplicative complaint “in light of [prisoner’s] history as a prolific serial filer”).

A complaint fails to state a claim if it does not include “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)). “Factual allegations [in a complaint] must be enough to raise a right to relief above the speculative level . . . .” Twombly,

(citations omitted). In other words,

the complaint must allege enough facts “to raise a reasonable expectation that discovery will reveal evidence” supporting a claim.

. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556

4 U.S. at 678 (citing Twombly,

). To state a claim for relief under § 1983, a plaintiff must allege that (1) an act or

omission deprived him of a right, privilege, or immunity secured by the Constitution or a statute of the United States; and (2) the act or omission was committed by a person acting under color of state law. Hale v. Tallapoosa Cnty.,

(11th Cir. 1995). If a litigant cannot satisfy these requirements or fails to provide factual allegations in support of his claim or claims, the complaint is subject to dismissal. See, e.g., Bingham v. Thomas,

(11th Cir. 2011) (affirming dismissal of certain claims at

preliminary screening because prisoner failed to allege sufficient facts to show a violation of his rights), abrogated on other grounds by Wade v. McDade,

, 1255 (11th Cir. 2024) (en banc). II. Plaintiff’s Allegations Plaintiff’s claims arise from his previous incarceration at Baldwin State Prison in

Milledgeville Georgia. ECF No. 1 at 5. Plaintiff complains that on October 30, 2024, “cert member Isom knocked [Plaintiff] out with his fist while [Plaintiff was] handcuffed behind [his] back.”

Plaintiff states Defendant Isom then “draged” him up and “started slapping [him] in front of OIC Williams and deputy warden Gardner.”

Plaintiff states that “Williams was standing over [him] and warden Gardner was standing there laughing.”

. Plaintiff seeks damages and injunctive relief.

As injunctive relief Plaintiff seeks “to be transferred to another prison or released on probation”, that the Defendants be terminated from employment, and that Defendant

5 Isom be “arrested for assault on inmate.” ECF No. 1 at 6. Such relief is unavailable in a § 1983 civil action. First, the Court cannot order that Plaintiff be released from prison

under § 1983. See Heck v. Humphrey,

(1994) (holding that release from custody is not available as a remedy in a § 1983 action); Gomez v. United States,

(11th Cir. 1990) (“relief of an Eighth Amendment violation does not include release from confinement.” Furthermore, district courts do not have the authority to transfer Plaintiff to another state prison or to terminate the employment of any state prison employee. See Newman v. Alabama,

, 288 (5th Cir.), cert. denied,

(1978); Bush v. Camp, 1:11–CV–64,

at * 2 n.1 (M.D. Ga. May 23, 2011). Matters regarding where Plaintiff is housed or which officers are employed by the Georgia Department of Corrections are strictly for the Georgia Department of Corrections to determine. Lastly, district courts do not have jurisdiction to institute criminal proceedings or the authority to order state or federal law enforcement agencies or

prosecutors to initiate investigations or prosecutions. Otero v. U. S. Attorney Gen.,

(11th Cir. 1987). Plaintiff, a private citizen, likewise has no power to originate criminal pleadings on his own initiative.

III. Plaintiff’s Claims A. Excessive force claim against Defendant Isom

Plaintiff asserts a claim of excessive force against Defendant CERT member Isom. Id. at 5. Claims of excessive force in the context of those incarcerated following conviction are governed by the Eighth Amendment’s “cruel and unusual punishment”

6 standard. Whitley v. Albers,

(1986). Eighth Amendment excessive force claims have both an objective and subjective component, and the plaintiff has the

burden of establishing both. Hudson v. McMillian,

(1992). To satisfy the subjective prong, the plaintiff must demonstrate that the defendant acted with a malicious and sadistic purpose to inflict harm.

. To satisfy the objective prong, the plaintiff must show that “the alleged wrongdoing was objectively ‘harmful enough’ to establish a constitutional violation.”

at 8 (citing Wilson v. Seiter,

(1991)). The key inquiry is “whether force was applied in a good-faith effort to maintain or

restore discipline, or maliciously and sadistically to cause harm.” Wilkins v. Gaddy,

(2010) (quoting Hudson,

). When the use of force is malicious or sadistic, “contemporary standards of decency always are violated . . . whether or not significant injury is evident.”

(ellipses in original) (quoting Hudson,

). “In determining whether the force was applied maliciously and sadistically to cause harm,

courts consider: ‘a) the need for the application of force; b) the relationship between the need and the amount of force that was used; c) the extent of the injury inflicted upon the prisoner; d) the extent of the threat to the safety of staff and inmates; and e) any efforts made to temper the severity of a forceful response.’” Bowden v. Stokely,

(11th Cir. 2014) (per curiam) (quoting Fennell v. Gilstrap,

(11th Cir. 2009)). Plaintiff alleges that Defendant Isom assaulted him while Plaintiff was handcuffed behind his back. ECF No. 1 at 5. Liberally construed and with all allegations read in his

7 favor, Plaintiff’s Eighth Amendment claim against Defendant Isom for use of excessive force is sufficient to proceed for further factual development.

B. Failure to intervene claim against Defendants Gardner and Williams Plaintiff further appears to assert a claim of failure to intervene against Defendants Deputy Warden Gardner and OIC Williams based on their alleged failure to stop Defendant Isom’s assault of the Plaintiff. ECF No. 1 at 5-6. “It is not necessary that a police officer actually participate in the use of excessive force in order to be held liable under section 1983.” Fundiller v. City of Cooper City,

(11th Cir. 1985). Rather, the Eighth Amendment “imposes a duty on prison officials” to “take reasonable measures to guarantee the safety of the inmates.” Caldwell v. Warden, FCI Talladega,

, 1099–1100 (11th Cir. 2014). Under this standard, “an officer can be liable for failing to intervene when another officer uses excessive force.” Priester v. City of Riviera Beach,

(11th Cir. 2000)

(citing Ensley v. Soper,

, 1407–08 (11th Cir. 1998)); Sebastian v. Ortiz,

(11th Cir. 2019) (“[I]f a police officer, whether supervisory or not, fails or refuses to intervene when a constitutional violation such as an unprovoked beating takes place in his presence, the officer is directly liable under Section 1983.” (quoting Ensley, 142 F.3d at 1407)); Byrd v. Clark,

(11th Cir. 1986); see also Bailey

v. City of Miami Beach,

, 196–97 (11th Cir. 2012) (no qualified immunity for officer who watched for two or three minutes while two of his fellow officers “attacked” plaintiff); Murphy v. Turpin,

(11th Cir. 2005) (applying deliberate

8 indifference standard to claim that prison official failed to intervene in inmate-on-inmate assault). However, “[t]o be held liable, the officer must both be ‘in a position to intervene’

and ‘fail[ ] to do so’ [and] there also must be an underlying constitutional violation.” Sebastian,

(quoting Priester,

). Plaintiff’s Eighth Amendment claim for failure to intervene against Defendants Gardner and Williams, liberally construed, is sufficient to proceed for further factual development. IV. Conclusion Based on the foregoing, Plaintiff’s motions to proceed in forma pauperis (ECF Nos.

2 and 9) are GRANTED and Plaintiff may proceed with his Eighth Amendment excessive force claim against Defendant Isom for further factual development. Plaintiff may also proceed with his Eighth Amendment failure to intervene claim against Defendants Gardner and Williams for further factual development. ORDER FOR SERVICE

Having found that Plaintiff has made colorable constitutional violation claims against Defendants Deputy Warden Gardner, OIC Williams, and CERT member Isom, it is accordingly ORDERED that service be made on the Defendants and that they file an Answer, or such other response as may be appropriate under Rule 12,

, and the Prison Litigation Reform Act. Defendants are reminded of the duty to avoid

unnecessary service expenses, and of the possible imposition of expenses for failure to waive service pursuant to Rule 4(d).

9 DUTY TO ADVISE OF ADDRESS CHANGE During the pendency of this action, all parties shall keep the Clerk of this Court and

all opposing attorneys and/or parties advised of their current address. Failure to promptly advise the Clerk of a change of address may result in the dismissal of a party’s pleadings. DUTY TO PROSECUTE ACTION Plaintiff is also advised that he must diligently prosecute his Complaint or face the possibility that it will be dismissed under Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute. Defendant is similarly advised that she is expected to

diligently defend all allegations made against her and to file timely dispositive motions as hereinafter directed. This matter will be set down for trial when the Court determines that discovery has been completed and that all motions have been disposed of or the time for filing dispositive motions has passed. FILING AND SERVICE OF MOTIONS, PLEADINGS, AND CORRESPONDENCE

It is the responsibility of each party to file original motions, pleadings, and correspondence with the Clerk of Court. A party need not serve the opposing party by mail if the opposing party is represented by counsel. In such cases, any motions, pleadings, or correspondence shall be served electronically at the time of filing with the Court. If any party is not represented by counsel, however, it is the responsibility of each opposing party to serve copies of all motions, pleadings, and correspondence upon the unrepresented party and to attach to said original motions, pleadings, and correspondence

filed with the Clerk of Court a certificate of service indicating who has been served and 10 where (i.e., at what address), when service was made, and how service was accomplished. DISCOVERY

Plaintiff shall not commence discovery until an answer or dispositive motion has been filed on behalf of the Defendant from whom discovery is sought by the Plaintiff. The Defendant shall not commence discovery until such time as an answer or dispositive motion has been filed. Once an answer or dispositive motion has been filed, the parties are authorized to seek discovery from one another as provided in the Federal Rules of Civil Procedure. The deposition of the Plaintiff, a state/county prisoner, may be taken at any

time during the time period hereinafter set out provided prior arrangements are made with his custodian. Plaintiff is hereby advised that failure to submit to a deposition may result in the dismissal of his lawsuit under Rule 37 of the Federal Rules of Civil Procedure. IT IS HEREBY ORDERED that discovery (including depositions and the service

of written discovery requests) shall be completed within 90 days of the date of filing of an answer or dispositive motion by the Defendant (whichever comes first) unless an extension is otherwise granted by the court upon a showing of good cause therefor or a protective order is sought by the defendant and granted by the court. This 90-day period shall run separately as to Plaintiff and Defendant beginning on the date of filing of Defendant’s

answer or dispositive motion (whichever comes first). The scheduling of a trial may be advanced upon notification from the parties that no further discovery is contemplated or that discovery has been completed prior to the deadline.

11 Discovery materials shall not be filed with the Clerk of Court. No party shall be required to respond to any discovery not directed to him/her or served upon him/her by the

opposing counsel/party. The undersigned incorporates herein those parts of the Local Rules imposing the following limitations on discovery: except with written permission of the court first obtained, interrogatories may not exceed TWENTY-FIVE (25) to each party, requests for production of documents and things under Rule 34 of the Federal Rules of Civil Procedure may not exceed TEN (10) requests to each party, and requests for admissions under Rule 36 of the Federal Rules of Civil Procedure may not exceed

FIFTEEN (15) requests to each party. No party shall be required to respond to any such requests which exceed these limitations. REQUESTS FOR DISMISSAL AND/OR JUDGMENT The Court shall not consider requests for dismissal of or judgment in this action, absent the filing of a motion therefor accompanied by a brief/memorandum of law citing

supporting authorities. Dispositive motions should be filed at the earliest time possible, but in any event no later than one hundred - twenty (120) days from when the discovery period begins unless otherwise directed by the Court. SO ORDERED and DIRECTED, this 22nd day of April, 2025.

s/ Charles H. Weigle Charles H. Weigle United States Magistrate Judge

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