4:25-cv-00403•JOHNSON v. HERBERT et al
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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION HERRON LEE JOHNSON, : : Plaintiff, : : v. : Case No. 4:25-cv-403-CDL-AGH : HERBERT, et al., : : Defendants. : ________________________________ ORDER AND RECOMMENDATION Pending before the Court are the claims of pro se Plaintiff Herron Lee Johnson, a prisoner currently confined in the Muscogee County Jail in Columbus, Georgia. For the following reasons, Plaintiff’s motions to proceed in forma pauperis (“IFP”) (ECF Nos. 4, 8) are GRANTED, and Plaintiff is ORDERED submit an initial partial filing fee in the amount of $33.94 and recast his Complaint on the Court’s standard form. Plaintiff’s motion for a mental health advocate (ECF No. 6) is DENIED, and it is RECOMMENDED that Plaintiff’s motion for a protective order (ECF No. 5) be DENIED. MOTIONS TO PROCEED IFP Plaintiff first seeks leave to proceed without prepayment of the Court’s filing fee. A review of Plaintiff’s motions to proceed IFP demonstrates that Plaintiff is presently unable to pay the cost of commencing this action. Plaintiff’s motions (ECF Nos. 4, 8) are therefore GRANTED. However, a prisoner allowed to proceed IFP must still pay the full amount of the $350.00 filing fee in installments based on funds Case 4:25-cv-00403-CDL-AGH Document 9 Filed 02/02/26 Page 1 of 11
2 in the prisoner’s trust account. When a prisoner has funds in his account, he must pay an initial partial filing fee of twenty percent of the greater of (1) the average monthly deposits to the prisoner’s account, or (2) the average monthly balance in the prisoner’s account for the six-month period immediately preceding the filing of the complaint. 28 U.S.C. § 1915(b)(1). A review of Plaintiff’s prison trust fund account statement shows he had an average monthly balance of $62.94 and average monthly deposits of $169.71. See Cert. Prisoner Acct. 1, ECF No. 8-2. Twenty percent of the greater of these amounts, $169.71, is $33.94. Plaintiff is therefore ORDERED to pay an initial partial filing fee of $33.94. Following payment of the initial partial filing fee, money will be deducted from Plaintiff’s account until the filing fee ($350.00) is paid in full as set forth in § 1915(b) and explained below. It is accordingly DIRECTED that the CLERK forward a copy of this ORDER to the business manager of the facility in which Plaintiff is incarcerated so that withdrawals from his account may commence as payment towards the filing fee. The district court’s filing fee is not refundable, regardless of the outcome of the case, and must therefore be paid in full even if the Plaintiff’s complaint (or any part thereof) is dismissed prior to service. I. Directions to Plaintiff’s Custodian 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, 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 Case 4:25-cv-00403-CDL-AGH Document 9 Filed 02/02/26 Page 2 of 11
3 at said institution until the $350.00 filing fee has been paid in full. In accordance with provisions of the Prison Litigation Reform Act (“PLRA”), Plaintiff’s 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 further ORDERED that collection of monthly payments from Plaintiff’s trust fund account shall continue until the entire $350.00 has been collected, notwithstanding the dismissal of Plaintiff’s lawsuit (or any part thereof) or the granting of judgment against him prior to the collection of the full filing fee. II. Plaintiff’s Obligations on 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. Plaintiff has FOURTEEN (14) DAYS from the date shown on this Order to pay a partial filing fee of $33.94. If circumstances have changed and Plaintiff cannot pay the initial partial filing fee as ordered, Plaintiff should file a renewed motion for leave to proceed in forma pauperis, accompanied by an updated prison trust fund account statement covering the most recent six months, explaining such change in Case 4:25-cv-00403-CDL-AGH Document 9 Filed 02/02/26 Page 3 of 11
4 circumstances within FOURTEEN (14) DAYS of the date of this Order. While Plaintiff’s custodian is ordered to make subsequent payments on Plaintiff’s behalf, Plaintiff should note that it is HIS RESPONSIBILITY to pay the initial partial filing fee. Thus, Plaintiff must arrange with the appropriate official to ensure that the initial partial filing fee is paid. Thereafter, Plaintiff’s custodian shall remit monthly payments as set forth above. ORDER TO RECAST COMPLAINT Plaintiff’s Complaint in this case arises from his treatment at the Muscogee County Jail. Compl. 5, ECF No. 1. Plaintiff contends that Defendant Herbert, a sergeant at the jail, “subjected [Plaintiff] to phy[s]ical danger by removing [him] from the segr[e]gated dorm of 3F reserved for alternative lifestyle individuals.” Id. Plaintiff contends he was assaulted after Defendant Herbert moved him. Id. Plaintiff also contends his “rights to due process have been repeatedly violated” at the jail because he complained about three sexual assaults, but his complaints were “dismissed as un[su]stained.” Id. He also suggests that Muscogee County Sheriff Greg Countryman and the mayor of Columbus, Georgia, are responsible for Defendant Herbert’s actions and the condition of the jail. See id. In addition to the above-captioned action, Plaintiff filed another case complaining about his treatment at Muscogee County Jail, Johnson v. Countryman, 4:25-cv-318-CDL-AGH (M.D. Ga. Oct. 20, 2025) (“Johnson I”). In his Recast Complaint in Johnson I, Plaintiff confirmed that he wished to pursue § 1983 claims against Defendant Countryman regarding his treatment at the jail (ECF No. 7). In Case 4:25-cv-00403-CDL-AGH Document 9 Filed 02/02/26 Page 4 of 11
5 Johnson I, Plaintiff alleges that (1) jail officials “prevent[] lawsuits [from] being filed by means of ‘forma pauperis’ by ensuring filing fee is not paid,” and (2) jail officials allow “mopping by food,” which contaminates the food fed to the inmates at the jail. Recast Compl. 5, ECF No. 7. Plaintiff states that Defendant Countryman is liable for these alleged constitutional violations because he is responsible for his employees’ actions. Id. Johnson I has now been consolidated into the above-captioned action and administratively closed. To ensure that each of Plaintiff’s claims from the consolidated cases is preserved, Plaintiff is ORDERED to recast his Complaint on the Court’s standard form for complaints under 42 U.S.C. § 1983 within FOURTEEN (14) DAYS of the date of this Order. The recast complaint must contain a caption that clearly identifies, by name, each individual that Plaintiff has a claim against and wishes to include as a Defendant in the present lawsuit. Plaintiff is to name only the individuals associated with the claim or related claims that he is pursuing in this action. Plaintiff must provide enough facts to plausibly demonstrate that each defendant’s actions or omissions resulted in the violation of his constitutional rights. When drafting his statement of claims on the Court’s form, it is recommended that Plaintiff list numbered responses to the following questions (to the extent possible) along with the name of each defendant: Case 4:25-cv-00403-CDL-AGH Document 9 Filed 02/02/26 Page 5 of 11
6 (1) What did this defendant do (or not do) to violate your rights? In other words: What was the extent of this defendant’s role in the unconstitutional conduct other than being in a supervisory role? Was the defendant personally involved in the constitutional violation? If not, did his actions otherwise cause the unconstitutional action? How do you know?1 (2) When and where did each action occur (to the extent memory allows)? (3) How were you injured as a result of this defendant’s actions or decisions? If you have been physically injured, explain the extent of your injuries and any medical care requested or provided. (4) How and when did this defendant learn of your injuries or otherwise become aware of a substantial risk that you could suffer a serious injury? (5) What did this defendant do (or not do) in response to this knowledge? (6) What relief do you seek from this defendant? Plaintiff should state his claims as simply as possible referring only to the relevant allegations against the named defendants in this case; he should not attach supporting documents to his recast complaint, use legal terminology, or cite any specific statute or case law to state a claim, although the Court will presume that 1 Supervisory officials are not liable under § 1983 for the unconstitutional acts of their subordinates on the basis of respondeat superior or vicarious liability. See, e.g., Christmas v. Nabors, 76 F.4th 1320, 1330 (11th Cir. 2023). If Plaintiff wishes to sue a supervisory official, he must instead allege specific facts to show that the supervisor either personally participated in the alleged constitutional violations or that a causal connection exists between his actions and a subordinate’s conduct. Id. This causal connection can be established if (1) “a history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged deprivation and he fail[ed] to do so”; (2) “the supervisor’s improper custom or policy le[d] to deliberate indifference to constitutional rights”; 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.” Hendrix v Tucker, 535 F. App’x 803, 805 (11th Cir. 2013) (alterations in original) (quoting Douglas v. Yates, 535 F.3d 1316, 1322 (11th Cir. 2008)). Case 4:25-cv-00403-CDL-AGH Document 9 Filed 02/02/26 Page 6 of 11
7 Plaintiff’s claims are brought under 42 U.S.C. § 1983 unless otherwise specified. See Fed. R. Civ. P. 8. If, in his recast complaint, Plaintiff fails to link a named defendant to a claim, the claim will be dismissed. Likewise, if Plaintiff makes no allegations in the body of his recast complaint against a named defendant, that defendant will be dismissed. Plaintiff is cautioned that the opportunity to file a recast complaint is not an invitation for him to include every imaginable claim that he may have against any state official. Plaintiff will not be permitted to join claims against multiple defendants in one action unless Plaintiff can establish a logical relationship between the claims in accordance with the Federal Rules of Civil Procedure. Plaintiff is also cautioned to fully and truthfully respond to each question presented on the standard form including but not limited to those questions regarding previous federal lawsuits and whether he has pursued grievances and exhausted his administrative remedies, or he risks dismissal of this case. The recast complaint will take the place of the original Complaints filed in this case and Johnson I. Plaintiff may include additional pages with the Court’s standard form, but the recast complaint must be no longer than ten (10) pages in its entirety. This ten-page limitation includes (and is not in addition to) the pre-printed pages of the Court’s standard form. The Court will not consider any allegations in any other document, or any allegations not contained within those ten pages, to determine whether Plaintiff has stated an actionable claim. Accordingly, any fact Plaintiff deems necessary to his Case 4:25-cv-00403-CDL-AGH Document 9 Filed 02/02/26 Page 7 of 11
8 lawsuit should be clearly stated in his recast complaint, even if Plaintiff has previously alleged it in another filing. The Clerk is DIRECTED to forward a copy of the § 1983 form, marked with the case number of the above-captioned action, to the Plaintiff that he should use to file his recast complaint. REMAINING PENDING MOTIONS Plaintiff has also filed a motion for a protective order (ECF No. 5) and a motion to appoint a mental health advocate (ECF No. 6). In his motion for a protective order, he seeks “an order of protection . . . to protect [him] from the actions of SGT Herbert at the Muscogee County Jail.” Mot. Protective Order 1, ECF No. 5. Plaintiff further contends that “SGT Herbert has taken actions in the past that have placed [Plaintiff] directly into harm with a lack of regard for [his] safety.” Id. The Court will liberally construe this motion as one seeking a temporary restraining order (“TRO”). A TRO or a preliminary injunction is a drastic remedy used primarily to preserve the status quo rather than grant most or all of the substantive relief sought in the complaint. See, e.g., Cate v. Oldham, 707 F.2d 1176, 1185 (11th Cir. 1983); Fernandez-Roque v. Smith, 671 F.2d 426, 429 (11th Cir. 1982).2 Factors a movant must show to be entitled to a TRO include: “(1) a substantial likelihood of ultimate success on the merits; (2) the TRO is necessary to prevent irreparable injury; (3) the threatened injury outweighs the harm the TRO would inflict on the non-movant; and 2 The standard for obtaining a TRO is the same as the standard for obtaining a preliminary injunction. See Parker v. State Bd. of Pardons & Paroles, 275 F.3d 1032, 1034-35 (11th Cir. 2001); Windsor v. United States, 379 F. App’x 912, 916-17 (11th Cir. 2010). Case 4:25-cv-00403-CDL-AGH Document 9 Filed 02/02/26 Page 8 of 11
9 (4) the TRO would serve the public interest.” Ingram v. Ault, 50 F.3d 898, 900 (11th Cir. 1995). Plaintiff does not clearly address these factors in his motion, and at this juncture the facts have not been sufficiently developed to conclude that there is a substantial likelihood that Plaintiff will ultimately prevail on the merits. Furthermore, the Defendants have not been served or had a meaningful opportunity to respond to Plaintiff’s allegations. Fed. R. Civ. P. 65(a). Defendants should be afforded an opportunity to respond to Plaintiff’s allegations, and any claims for injunctive relief can be addressed as this case proceeds. It is thus recommended that Plaintiff’s motion for a protective order be denied at this time. Plaintiff also requests a “mental health advocate to help with the prosecution of [his] case.” ECF No. 6 at 1. This is not a service the Court can provide Plaintiff. Plaintiff’s motion is accordingly denied. Plaintiff may file a motion for appointed counsel if he would like to have a lawyer appointed to help him prosecute his case. He is advised, however, that “[a]ppointment of counsel in a civil case is not a constitutional right,” Fowler v. Jones, 899 F.2d 1088, 1096 (11th Cir. 1990), and it is “warranted only in exceptional circumstances,” Smith v. Fla. Dep’t of Corr., 713 F.3d 1059, 1063 (11th Cir. 2013) (citing Steele v. Shah, 87 F.3d 1266, 1271 (11th Cir. 1996)). CONCLUSION For the foregoing reasons, Plaintiff’s motions to proceed in forma pauperis (“IFP”) (ECF Nos. 4, 8) are GRANTED, and Plaintiff is ORDERED submit an initial Case 4:25-cv-00403-CDL-AGH Document 9 Filed 02/02/26 Page 9 of 11
10 partial filing fee in the amount of $33.94 and recast his Complaint on the Court’s standard form within FOURTEEN (14) DAYS of the date of this Order. Plaintiff’s motion for a mental health advocate (ECF No. 6) is DENIED, and it is RECOMMENDED that Plaintiff’s motion for a protective order (ECF No. 5) be DENIED. If Plaintiff does not timely and fully comply with this Order, this action may be dismissed. Plaintiff is further DIRECTED to notify the Court immediately in writing of any change in his mailing address. There shall be no service of process in this case until further order of the Court. OBJECTIONS Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation with the Honorable Clay D. Land, United States District Judge, WITHIN FOURTEEN (14) DAYS after being served with a copy of this Recommendation. Any objection is limited in length to TWENTY (20) PAGES. See M.D. Ga. L.R. 7.4. The parties may seek an extension of time in which to file written objections, provided a request for an extension is filed prior to the deadline for filing written objections. Failure to object in accordance with the provisions of § 636(b)(1) waives the right to challenge on appeal the district judge’s order based on factual and legal conclusions to which no objection was timely made. See 11th Cir. R. 3-1. Case 4:25-cv-00403-CDL-AGH Document 9 Filed 02/02/26 Page 10 of 11
11 SO ORDERED and RECOMMENDED, this 2nd day of February, 2026. s/ Amelia G. Helmick UNITED STATES MAGISTRATE JUDGE Case 4:25-cv-00403-CDL-AGH Document 9 Filed 02/02/26 Page 11 of 11
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