Citation Codes

Equivalent Citations

citation codes

Docket Number

No. 08-16795 Non-Argument Calendar.

Advocates

Larry D. Richardson, Daytona Beach, FL, pro se. Yvette Acosta MacMillan, Tampa, FL, for Johnson.

Judges

Gerald Bard Tjoflat
Charles R. Wilson
Phyllis A. Kravitch

Acts

The Public Health And Welfare — Civil Rights — Generally — Civil Action For Deprivation Of Rights
Judiciary And Judicial Procedure — Fees And Costs — Procedure — Screening
Judiciary And Judicial Procedure — Fees And Costs — Procedure — Proceedings In Forma Pauperis
Judiciary And Judicial Procedure — United States Marshals Service — Department Of Justice — United States Marshals Service

See more information ...

Smart Summary

Case Summary: Larry D. Richardson v. Warden Johnson et al.

Factual and Procedural Background

On October 12, 2006, inmate Larry Richardson at Charlotte Correctional Institution (CCI) filed a grievance requesting single-cell housing because of his cellmate's "unhygienic actions." Two days later the cellmate attacked Richardson, causing lacerations; Richardson was moved the next day. Richardson filed multiple grievances seeking transfer and later filed a pro se § 1983 complaint (after IFP status) against the Florida DOC Secretary James McDonough, Warden Johnson, Inspector Laughlin, and CCI guards John Doe, Mr. Adams, and Mr. McNealy, alleging Eighth Amendment violations: assignment to a known-dangerous cellmate who attacked him, denial of medical treatment for 15 hours after the attack, and denial of grievances.

In December 2007 the district court sua sponte dismissed claims against McDonough, Adams, Laughlin, and John Doe without prejudice for lack of factual connection or because fictitious-party pleading is not permitted, and directed service on McNealy and Johnson. Service on McNealy failed. On November 5, 2008 the district court dismissed the claim against McNealy under Fed. R. Civ. P. 4(m) for failure to timely serve and granted Johnson's Rule 12(b)(6) motion, finding no allegation that Johnson knew of a substantial risk. Richardson moved for reinstatement/reconsideration; the district court denied it. Richardson appeals the dismissals and denial of reconsideration.

Legal Issues Presented

Whether the district court properly dismissed Richardson's § 1983 claims against Secretary McDonough, Mr. Adams, Inspector Laughlin, and John Doe for failure to state a claim or because fictitious-party pleading is impermissible.
Whether the district court properly granted Warden Johnson's Rule 12(b)(6) motion for failure to plead that Johnson was deliberately indifferent to a known substantial risk.
Whether the district court abused its discretion in dismissing the claim against McNealy under Fed. R. Civ. P. 4(m) for failure to timely serve process given Richardson's status as an IFP pro se prisoner and the Marshal's failure to effect service.
Whether the district court abused its discretion in denying Richardson's motion for reconsideration.

Arguments of the Parties

Appellant's (Richardson's) Arguments

The district court erred in sua sponte dismissing his § 1983 claims against McDonough, Adams, Laughlin, and John Doe.
The district court erred in dismissing his claim against Warden Johnson under Rule 12(b)(6).
The district court erred in dismissing the claim against McNealy under Rule 4(m) because, as an IFP pro se prisoner, the court-appointed process server (Marshal) was responsible for effectuating service.
The district court abused its discretion by denying his motion for reinstatement/reconsideration and by failing to consider his letter to the court-appointed service agent.

Appellees' Positions (as reflected in the opinion)

Warden Johnson moved to dismiss under Fed. R. Civ. P. 12(b)(6) on the ground that Richardson failed to allege Johnson knew of and disregarded a substantial risk to Richardson's safety.
The district court treated the failure to serve McNealy as a Rule 4(m) deficiency and dismissed for lack of timely service after the Marshal reported inability to locate McNealy at the institution.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Leal v. Ga. Dep't of Corr., 254 F.3d 1276, 1278-79	Standard of review: de novo review of district court orders on these issues.	The court stated it construes Richardson's brief liberally and reviewed the district court orders de novo citing Leal.
U.S. Steel, LLC v. Tieco, Inc., 261 F.3d 1275, 1288	Elements required to state a claim under 42 U.S.C. § 1983.	Used to state the § 1983 pleading requirements (deprivation of federal right under color of state law).
Arrington v. Cobb County, 139 F.3d 865, 872	Support for § 1983 elements and pleading requirements.	Cited alongside U.S. Steel to articulate § 1983 requirements applied to Richardson's complaint.
Chandler v. Crosby, 379 F.3d 1278, 1289	Eighth Amendment objective and subjective components for prisoner claims.	Applied to explain that an Eighth Amendment claim requires both an objective risk and deliberate indifference.
Farrow v. West, 320 F.3d 1235, 1245	Definition/components of deliberate indifference (subjective knowledge; disregard; more than negligence).	Applied to evaluate whether allegations against McDonough, Adams, Laughlin, and Johnson satisfied deliberate indifference; court found they did not.
Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)	Municipal liability: § 1983 does not provide respondeat superior liability; liability requires a policy or custom.	Applied to reject a § 1983 claim against Secretary McDonough absent allegations that McDonough personally acted or established a policy causing the injury.
New v. Sports Recreation, Inc., 114 F.3d 1092, 1094 n.1	Fictitious-party pleading is generally not permitted in federal court.	Applied to affirm dismissal of the John Doe defendant where the complaint's description was insufficient to identify the guard.
Dean v. Barber, 951 F.2d 1210, 1215-16	Limited exception when a fictitious-party description is so specific it is merely surplusage.	Referenced to explain that the exception did not apply because Richardson's complaint did not sufficiently identify John Doe.
Rance v. Rocksolid Granit USA, Inc., 583 F.3d 1284, 1286-88	Standard for reviewing sua sponte Rule 4(m) dismissals (abuse of discretion) and that Marshal's failure to serve through no fault of IFP plaintiff constitutes good cause.	Applied to review the Rule 4(m) dismissal for abuse of discretion and to state that the Marshal's failure may establish good cause if the plaintiff is not at fault.
Fowler v. Jones, 899 F.2d 1088, 1094-96	When a pro se incarcerated IFP plaintiff is not at fault for service failures if he acted reasonably under constraints.	Used to support that prisoner-litigants who request service and attempt to remedy defects are not at fault for Marshal's failures.
Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987)	Quoted authority supporting that incarcerated plaintiffs who request service and attempt to remedy defects are not at fault.	Quoted within the Fowler discussion to support the proposition that the prisoner was not at fault when he acted reasonably.
Sellers v. United States, 902 F.2d 598, 602	When Marshal is instructed to serve on behalf of a prisoner, the prisoner need furnish only information necessary to identify the defendant; Marshal should have access to employment/location information.	Quoted and endorsed as persuasive authority for the rule that prisoners need only provide identifying information to the Marshal.
Graham v. Satkoski, 51 F.3d 710, 713	Applied Sellers to state prisoners; failure of Marshal to obtain addresses may constitute good cause and requires inquiry whether Marshal could have obtained addresses with reasonable effort.	Court found Graham persuasive and adopted its reasoning to vacate dismissal and remand for determination whether McNealy could be located with reasonable effort.
Sanderlin v. Seminole Tribe of Fla., 243 F.3d 1282, 1285	Standard of review for denial of a motion for reconsideration: abuse of discretion.	Applied to review the district court's denial of Richardson's motion for reconsideration.
Michael Linet, Inc. v. Village of Wellington, 408 F.3d 757, 763	Motion for reconsideration cannot be used to relitigate matters or present evidence that could have been raised earlier.	Applied to affirm denial of Richardson's motion for reconsideration as to defendants other than McNealy because it attempted to relitigate old matters.

Court's Reasoning and Analysis

The court reviewed de novo Richardson's challenges to the district court's dismissals. It recited § 1983 pleading requirements and the Eighth Amendment's objective and subjective components (citing Chandler and Farrow). The court concluded the district court properly dismissed claims against Secretary McDonough because Richardson alleged no personal deliberate indifference or policy established by McDonough (citing Monell and related authority). The court also affirmed dismissal of Adams and Laughlin because the complaint contained no facts showing deliberate indifference by them. The John Doe claim was properly dismissed because the complaint's identification was insufficient and the Dean limited exception did not apply.

As to Warden Johnson, the court held Richardson failed to allege Johnson knew of and disregarded a substantial risk; the pre-attack grievance merely labeled the cellmate "unhygienic" and was not shown to have been received before the attack, so the Rule 12(b)(6) dismissal was proper.

Regarding McNealy and Rule 4(m), the court reviewed the district court's sua sponte dismissal for abuse of discretion. It reasoned that a pro se IFP prisoner need only provide sufficient identifying information for the court-appointed service agent (Marshal) to locate a prison guard; the Marshal's failure to serve through no fault of the prisoner can constitute good cause (citing Rance, Fowler, Sellers, and Graham). The court found the Seventh Circuit's Sellers/Graham reasoning persuasive and concluded it is unreasonable to expect incarcerated plaintiff to provide current addresses for former prison guards. Accordingly, the court vacated the Rule 4(m) dismissal of McNealy and remanded for the district court to determine whether McNealy can be located with reasonable effort; if so, McNealy must be served, otherwise dismissal was proper.

On reconsideration, the court reviewed for abuse of discretion and concluded the district court properly denied Richardson's motion insofar as it sought to relitigate matters or present evidence that could have been raised earlier, but vacated the denial as to McNealy because the district court failed to determine whether Richardson had established good cause under Rule 4(m).

Holding and Implications

AFFIRMED IN PART, VACATED AND REMANDED IN PART.

Holding details:

The district court's dismissals of Richardson's § 1983 claims against Secretary McDonough, Mr. Adams, Inspector Laughlin, and John Doe, and the dismissal of the claim against Warden Johnson under Rule 12(b)(6), were affirmed.
The district court's dismissal of Richardson's claim against McNealy under Fed. R. Civ. P. 4(m) and its denial of reconsideration as to McNealy were vacated; the case is remanded for the district court to determine whether McNealy can be located with reasonable effort and thus whether service should be ordered.

Implications: The direct effect is that most of Richardson's claims remain dismissed while the McNealy claim receives further district-court factfinding about serviceability; the opinion applies and endorses existing principles regarding § 1983 pleading, fictitious-party pleading, deliberate indifference, and Rule 4(m) service issues but does not purport to establish a new broad precedent beyond applying those principles to these facts.

Show full summary ...

Larry D. RICHARDSON, Plaintiff-Appellant, v. Warden JOHNSON, Fnu McNealy, Guard, Defendants-Appellees.

PER CURIAM:

Larry Richardson, a pro se litigant incarcerated in state prison, appeals the district court's dismissal of his civil rights action under 42 U.S.C. § 1983 and the denial of his motion for reconsideration. We affirm in part and vacate and remand in part.

I. Background

On October 12, 2006, Richardson, a prisoner at the Charlotte Correctional Institution (CCI), filed a grievance with Warden Johnson, requesting single-cell housing because of his cellmate's "unhygienic actions." On October 16, two days before Warden Johnson received this grievance, Richardson's cellmate attacked him in the cell, causing severe bleeding from lacerations on Richardson's face, arms, and back. The prison authorities moved him to a different cell the next day. Thereafter, Richardson filed numerous grievances seeking a transfer to single-cell housing on various grounds, including the attack and his former cellmate's destruction of his property. These grievances were either returned as improper or denied.

After the district court granted Richardson leave to proceed in forma pauperis (IFP), he filed a pro se civil rights complaint under 42 U.S.C. § 1983 against the Secretary of the Florida Department of Corrections, James McDonough; Warden Johnson and Inspector Laughlin at CCI; and three CCI guards, "John Doe (Unknown Legal Name)," Mr. Adams, and Mr. McNealy. In relevant part, Richardson alleged that the defendants violated his Eighth Amendment rights by (1) assigning him to a cell with another inmate who was known to be dangerous and who later attacked him, (2) refusing him medical treatment for 15 hours after the attack, and (3) denying his numerous grievances and requests.

In December 2007, the district court sua sponte dismissed the claims against Secretary McDonough, Mr. Adams, and Inspector Laughlin without prejudice because Richardson's complaint contained no allegations connecting them to any violation of Richardson's Eighth Amendment rights. The district court also dismissed Richardson's claim against John Doe without prejudice because naming fictitious parties in pleadings was not permitted in federal court. Finally, the district court directed the United States Marshals to serve process on McNealy and Johnson by mailing the appropriate papers to Shirley Matthew, a correctional officer at CCI.

On January 11, 2008, Matthew notified the court that she had served Warden Johnson but had been unable to serve McNealy because there was "no such person at this institution." After learning of the failure of service, Richardson sent a letter to Matthew on January 28 stating that McNealy had worked the "4 p.m. to 12 p.m. shift" at CCI in July 2007 and that "it should of [sic] been simple for you located Guard, Mr. McNealy within that prison facility." He also stated in the letter that "John Doe, a Mr. Mitchell" would be easy to identify "by your simply reviewing the complaint."

In an order dated November 5, 2008, the court dismissed Richardson's claim against McNealy without prejudice for failure to timely serve under Federal Rule of Civil Procedure 4(m). The court also granted Warden Johnson's motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) because Richardson had not shown that Johnson was aware of a substantial risk of a serious physical threat to Richardson. The court noted that the grievance Richardson submitted prior to the attack mentioned only that his cellmate was "unhygienic" and that it was not stamped "received" until two days after the attack.

Richardson then filed a motion for reinstatement and an immediate hearing, arguing that the court made erroneous factual findings regarding the grievance process and improperly failed to consider his letter to Matthew, the court-appointed service agent. The district court construed this filing as a motion for reconsideration and denied it. Richardson appeals both the district court's dismissal of his claims and its denial of his motion for reconsideration.

II. Discussion

A. Claims Against McDonough, Adams, Laughlin, and Doe

Richardson first argues that the court erred in dismissing (1) his § 1983 claims against McDonough, Adams, Doe, and Laughlin sua sponte and (2) his claim against Warden Johnson under Rule 12(b)(6). We construe Richardson's brief liberally and review these district court orders de novo. Leal v. Ga. Dep't of Corr., 254 F.3d 1276, 1278-79 (11th Cir. 2001).

Although the court did not identify the basis for its sua sponte dismissal of these defendants, it appears that the court entered its order under 28 U.S.C. § 1915A, which provides that "[t]he court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity." Upon review, "the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint . . . is frivolous, malicious, or fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915A(b).

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. U.S. Steel, LLC v. Tieco, Inc., 261 F.3d 1275, 1288 (11th Cir. 2001); Arrington v. Cobb County, 139 F.3d 865, 872 (11th Cir. 1998). To state an Eighth Amendment claim under § 1983, a prisoner must allege facts to satisfy both an objective and subjective inquiry regarding a prison official's conduct. Chandler v. Crosby, 379 F.3d 1278, 1289 (11th Cir. 2004). Under the objective component, a prisoner must allege a prison condition that is so extreme that it poses an unreasonable risk of serious damage to the prisoner's health or safety. To satisfy the subjective component, the prisoner must allege that the prison official, at a minimum, acted with a state of mind that constituted deliberate indifference. "[D]eliberate indifference has three components: (1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than mere negligence." Farrow v. West, 320 F.3d 1235, 1245 (11th Cir. 2003) (quotation marks and citations omitted).

We conclude that the district court correctly dismissed Richardson's claims against McDonough, Adams, and Laughlin. Richardson has not alleged that Secretary McDonough was himself deliberately indifferent to Richardson's health or safety or that Richardson's injuries were the result of an official policy that McDonough established as the Secretary for the Florida Department of Corrections. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Because § 1983 does not provide for liability under a theory of respondeat superior, id. at 691, 98 S.Ct. 2018, the district court properly dismissed this claim. Furthermore, the district court correctly dismissed Richardson's claims against Adams and Laughlin because Richardson's complaint alleges no facts describing how either was deliberately indifferent to Richardson's health or safety. See Farrow, 320 F.3d at 1245-46.

We also conclude that the district court correctly dismissed Richardson's claim against John Doe. As a general matter, fictitious-party pleading is not permitted in federal court. See, e.g., New v. Sports Recreation, Inc., 114 F.3d 1092, 1094 n. 1 (11th Cir. 1997). We have created 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." Dean v. Barber, 951 F.2d 1210, 1215-16 (11th Cir. 1992). In this case, however, Richardson identified the defendant as "John Doe (Unknown Legal Name), Guard, Charlotte Correctional Institute" in his complaint. Although he later referred to the "John Doe" defendant as "a Mr. Mitchell" in his letter to Matthew in January 2008, he did so only after the district court had dismissed his claim. Thus, the description in Richardson's complaint was insufficient to identify the defendant among the many guards employed at CCI, and the district court properly dismissed this claim.

Finally, we conclude that the district court correctly granted Warden Johnson's motion to dismiss for failure to state a claim. Richardson made no allegations that Johnson had acted with deliberate indifference to his health or safety. The grievance Richardson filed before the attack asserted only that his cellmate was "unhygienic." Because the complaint failed to allege that Johnson had disregarded a known risk, the district court properly dismissed the claim against Johnson. See Farrow, 320 F.3d at 1245.

B. Failure to Serve McNealy

Richardson argues that the district court erred in dismissing his claim under Rule 4(m) for the failure to timely serve McNealy. Richardson contends that, because he was a pro se prisoner-litigant proceeding IFP, the court-appointed process server was responsible for effecting service on McNealy.

The sua sponte dismissal of a complaint for failure to serve under Rule 4(m) is reviewed for an abuse of discretion. Rance v. Rocksolid Granit USA, Inc., 583 F.3d 1284, 1286 (11th Cir. 2009). Under this standard, we affirm "unless [we] find that the district court has made a clear error of judgment, or has applied the wrong legal standard." Id. Under Rule 4(m), the district court "must dismiss the action without prejudice . . . or order that service be made within a specific time" if the defendant has not been served within 120 days of the filing of the complaint. Fed.R.Civ.P. 4(m). The court must extend the time for service, however, if the plaintiff shows "good cause" for the failure. Id.

When a court grants a litigant leave to proceed IFP, the officers of the court must "issue and serve all process." 28 U.S.C. § 1915(d). "[T]he failure of the United States Marshal to effectuate service on behalf of an in forma pauperis plaintiff through no fault of that plaintiff constitutes `good cause' for the plaintiff's failure to effect timely service within the meaning of Rule 4(m)." Rance, 583 F.3d at 1288. Thus, to determine whether the district court abused its discretion by failing to extend the time for service, we must determine whether Richardson was at fault for failing to provide an up-to-date address for McNealy.

We have no binding authority stating whether a pro se prisoner-litigant proceeding IFP is at fault when he cannot provide the current address of a prison guard to the court-appointed service agent. In Rance, we reversed a Rule 4(m) dismissal when "[n]othing in the record indicate[d] that [the plaintiff] share[d] in the Marshal's fault for failure to effectuate service." Id. at 1288. In Fowler v. Jones, 899 F.2d 1088, 1094 (11th Cir. 1990), we reasoned that a pro se prisoner-litigant proceeding IFP was not at fault when he had acted reasonably. "[G]iven that he was incarcerated and unrepresented, so that neither he nor legal counsel acting on his behalf was able to check the case file at the courthouse to determine the status of service," id. at 1095-96, we concluded that the prisoner-litigant was not at fault when he "request[ed] service upon the appropriate defendant and attempt[ed] to remedy any apparent service defects of which [he] ha[d] knowledge." Id. (quoting Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987)).

In a case with nearly identical facts, the Seventh Circuit held that "when the district court instructs the Marshal to serve papers on behalf of a prisoner, the prisoner need furnish no more than the information necessary to identify the defendant." Sellers v. United States, 902 F.2d 598, 602 (7th Cir. 1990). The court reasoned that

We cited Sellers with approval in Rance, 583 F.3d at 1287.

[p]rison guards do not want prisoners to have their home addresses, and the Bureau of Prisons is reluctant to tell prisoners even the current place of employment of their former guards. This is a sensible precaution, for prisoners aggrieved by guards' conduct may resort to extra-legal weapons after release if they do not deem the results of the litigation satisfactory. . . . Because the Marshals Service is part of the Department of Justice, 28 U.S.C. § 561, it should have ready access to the necessary information.

Id. at 602. In a subsequent decision, the Seventh Circuit applied Sellers to a pro se prisoner proceeding IFP in a state prison:

The present cases involve state prisoners, not federal prisoners, but the distinction is irrelevant. Sellers is grounded in the belief that use of marshals to effect service alleviates two concerns that pervade prisoner litigation, state or federal: 1) the security risks inherent in providing the addresses of prison employees to prisoners; and 2) the reality that prisoners often get the "runaround" when they attempt to obtain information through governmental channels and needless attendant delays in litigating a case result.

Graham v. Satkoski, 51 F.3d 710, 713 (7th Cir. 1995). The Graham court vacated the district court's Rule 4(m) dismissal and remanded the case for a determination whether the Marshal service could have obtained the new addresses of the prison-guard defendants with reasonable effort. If so, their failure to do so would automatically have constituted "good cause" under Rule 4(m).

We find this reasoning persuasive. It is unreasonable to expect incarcerated and unrepresented prisoner-litigants to provide the current addresses of prison-guard defendants who no longer work at the prison. Thus, we conclude that, as long as the court-appointed agent can locate the prison-guard defendant with reasonable effort, prisoner-litigants who provide enough information to identify the prison-guard defendant have established good cause for Rule 4(m) purposes.

We therefore vacate the district court's dismissal of Richardson's claim against McNealy and remand to the district court for a determination whether McNealy can be located with reasonable effort. If so, McNealy must be served; otherwise, the district court properly dismissed Richardson's claim against McNealy.

C. Motion for Reconsideration

Finally, Richardson argues that the court erred in denying his motion for reconsideration. We review the denial of a motion for reconsideration for an abuse of discretion. Sanderlin v. Seminole Tribe of Fla., 243 F.3d 1282, 1285 (11th Cir. 2001). A motion for reconsideration cannot be used "to relitigate old matters, raise argument or present evidence that could have been raised prior to the entry of judgment." Michael Linet, Inc. v. Village of Wellington, 408 F.3d 757, 763 (11th Cir. 2005).

Insofar as Richardson's motion for reconsideration can be construed to concern defendants other than McNealy, we conclude that the district court did not abuse its discretion in denying the motion: Richardson's motion simply attempted to relitigate old matters and present evidence that could have been raised prior to the entry of judgment. With regard to McNealy, however, we vacate the district court's denial because the district court abused its discretion in failing to determine whether Richardson had established good cause under Rule 4(m).

III. Conclusion

Accordingly, the district court's orders are

AFFIRMED IN PART, VACATED AND REMANDED IN PART.

RICHARDSON v. JOHNSON