Juzang v. Smith
| Decision Date | 28 October 2022 |
| Docket Number | Civil Action 21-00216-KD-B |
| Parties | CARLOS DEMETRIUS JUZANG, 234857, Plaintiff, v. LT. SMITH, et al., Defendants. |
| Court | U.S. District Court — Southern District of Alabama |
REPORT AND RECOMMENDATION
Plaintiff Carlos Demetrius Juzang, an Alabama prison inmate proceeding pro se and in forma pauperis, filed a Complaint under 42 U.S.C. § 1983. His action has been referred to the undersigned for appropriate action pursuant to 28 U.S.C. § 636(b)(1)(B) and S.D. Ala. GenLR 72(a)(2)(R). After careful consideration, it is recommended that this action be dismissed without prejudice, prior to service of process, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted.
A. Complaint. (Doc. 4).
The operative complaint in this action is Juzang's first amended complaint (Doc. 4) (complaint), which he was ordered to file because his original § 1983 complaint was not on the complaint form required by this Court. (See Docs. 1, 3). In the complaint, Juzang names Lieutenants Fountain and Smith and Captain Willie Knight names as Defendants. (Doc. 4 at 6, PageID.21-22).
According to Juzang, sometime during the last week of May or the first week of June of 2019 at Fountain Correctional Facility (Fountain), several inmates attacked him with knives and locks attached to belts and he was severely injured as a result. (Id. at 4, PageID.19). Juzang asserts that the on-duty officer in 3 Cell did not attempt to “secure or control the situation.” (Id.). Juzang also asserts that as a result of the attack, he received nine stab wounds and skull fractures, which were treated at two free-world hospitals, and he now suffers from memory loss and major headaches. (Id.).
Juzang alleges that when he returned from the hospital to Fountain, he was placed in 4 Cell, and then, without any explanation, Defendant Fountain took him to lock-up. (Id.). There, Juzang learned that Defendant Smith was charging him with assault with a weapon on an inmate. (Id. at 5, PageID.20) . Juzang avers that he was the only one injured in the assault, taken to the hospital, placed in lock-up, and written up. (Id.). Juzang argues that the situation “smells fishy” to him, and notes that Defendant Knight informed I & I of the assault with a weapon. (Id.).
Juzang asserts that an inmate by the name of Cookie, who was a friend of one of Juzang's assailants, admitted in lock-up that the “lieutenants” (assuming the lieutenants to include Defendants Lieutenants Smith and Fountain) and Defendant Knight were “paid $1,000 to change the disciplinary and place all [the] blame on [Juzang],” which resulted in his custody being increased and him being transferred. (Id.). Juzang contends that this fraud by the officers “explains why the person whom he assaulted cannot be produced!” (Id.).
Juzang asserts claims against Defendant for “negligence, fraud and accepting bribes.”[1] (Id. at 6-7, PageID.21-22). He requests the following relief: 1)expungement of the disciplinary, 2) a decrease in custody, 3) $500,000 in punitive damages and 4)$500, 000 in compensatory damages. (Id. at 8, PageID.23).
B. Screening.
During the Court's initial screening of Juzang's complaint pursuant to 28 U.S.C. § 1915(e)(2)(B), it was determined that more information was needed in order to fully screen the complaint. (Doc. 12, PageID.47). Therefore, Juzang was ordered to file a copy of the disciplinary report referenced in his complaint. (Doc. 12 at 1, PageID.47-48). Juzang did not respond to the Court's
Instead of recommending the dismissal of this action for failure to comply with the Court's order, the Court, in an order dated February 8, 2022 (Doc. 15 at 1, PageID.51-52) afforded Juzang a final opportunity to file a copy of the disciplinary report. (Id.). Juzang responded that his copy of the disciplinary report was lost during a shakedown at the facility, and that he has twice requested a copy of the disciplinary report, but prison officials has not provided it to him. (Doc. 16 at 1, PageID.53). He also asserted that his medical records would show that he was injured from an assault. (Id.).
Due to the absence of a disciplinary report, the Court ordered Juzang to inform the Court, under penalty of perjury, of the penalties that he received as a result of the disciplinary such as, whether he was placed in disciplinary segregation, and if so, for how long; whether he lost privileges, and if so, what type and for how long; and whether he suffered any other consequences as a result of the disciplinary. (Doc. 17 at 2, PageID.56).
Juzang responded, with an unsigned filing, wherein he asserted that he had requested the disciplinary report again but has not received it. (Doc. 18 at 1, PageID.57). He also attached a copy of his timesheet, which shows that his custody changed from a four to five. (Id.). He further states his parole was put off for five years due to the assault being placed on his record. (Id.). Juzang also asserted that even though he was the inmate who was assaulted, he was sent to William E. Donaldson Facility (Donaldson), a level 5 max prison, to be around life-without-parole-inmates while the inmates who attacked him did not get in trouble. (Id. at 1-2, PageID.57-58). According to Juzang, upon his transfer to Donaldson, he “was placed in close custody, segregation for six months, no visits, phone calls twice a week [and] [he] was on restriction.” (Id. at 1, PageID.57).
The timesheet filed by Juzang reflects that it was generated on December 9, 2020. The timesheet reflects, towards the bottom of the page, that Juzang received a major disciplinary at Fountain on June 14, 2019 for a violation of Rule 907 - assault with a weapon on an inmate. (Id. at 3, PageID.59). It also reflects that no time was lost, and that custody from 29 to 29 occurred. (Id.). At the beginning of the timesheet, it reflects that Juzang was at Donaldson, security 5, custody-CLS-9-as of August 14, 2020, and that he was prohibited from earning good-time.[2] Because Juzang's response was unsigned, he was once again directed to sign his response under penalty of perjury and to file it no later than June 10, 2022. (Doc. 19 at 1, PageID.61). The Court kept a copy of his filing and returned the original filing to him. (Id. at 2, PageID.62). Juzang was warned that his failure to refile his response, signed under of penalty of perjury, would result in a recommendation of dismissal of his action for failure to prosecute and to obey the Court's order. (Id. at 2, PageID.62). Juzang has failed to respond to the Court's order. This is the second instance in which he has filed to timely comply with the Court's orders.
Because Juzang is proceeding in forma pauperis, the Court is reviewing his Complaint (Doc. 4) under 28 U.S.C. § 1915(e)(2)(B). Under § 1915(e)(2)(B)(i), a claim may be dismissed as “frivolous where it lacks an arguable basis in law or fact.” Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989). A claim is frivolous as a matter of law where, inter alia, the defendants are immune from suit, id. at 327, 109 S.Ct. at 1833, or the claim seeks to enforce a right that clearly does not exist. Id.
Moreover, a complaint may be dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted. Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997). To avoid dismissal for failure to state a claim upon which relief can be granted, the allegations must show plausibility. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 1966, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads 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, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). That is, “[f]actual allegations must be enough to raise a right to relief above the speculative level” and must be a “‘plain statement' possess[ing] enough heft to ‘sho[w] that the pleader is entitled to relief.'” Twombly, 550 U.S. at 555, 557, 127 S.Ct. at 1965, 1966 (). But “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
When considering a pro se litigant's allegations, a court gives them a liberal construction holding them to a more lenient standard than those of an attorney, Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998), but “this leniency does not give a court license to serve as de facto counsel for a party, or to rewrite an otherwise deficient pleading in order to sustain an action.” Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1168 (11th Cir.) (citation and quotation marks omitted), cert. denied, 574 U.S. 1047 (2014). Furthermore, a court treats as true factual allegations, but it does not treat as true conclusory assertions or a recitation of a cause of action's elements. Iqbal, 566 U.S. at 681, 129 S.Ct. at 1951. In addition, a pro se litigant “is subject to the relevant law and rules of court including the Federal Rules of Civil Procedure.” Moon v. Newsome, 863 F.2d 835, 837 (11th Cir.), cert. denied, 493 U.S. 863 (1989).
Juzang claims that his disciplinary for assault with a weapon on an inmate was the result of a $1,000 bribe being paid to Defendants to change the disciplinary and place all the blame on him, while the inmates who attacked him were not charged. (Doc. 4 at 5, PageID.20). Interestingly, Juzang does not allege that he is...
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