Opinion
5:17-CV-401 (TES)
10-26-2018
KENNETH GLENN, Plaintiff, v. Sgt. WILLIAMS, et al., Defendants.
ORDER AND RECOMMENDATION
Before the Court are Plaintiff's Motions to Appoint Counsel (Docs. 48, 50, 54), Motion to be Transferred to Augusta Medical Prison (Doc. 48), Motion for Permanent Injunction (Doc. 49), and Motion to Amend Complaint (Doc 51). Motions to Appoint Counsel (Docs. 48 , 50 , 54)
Plaintiff has filed three Motions to Appoint Counsel. (Docs. 48, 50, 54). Generally speaking, no right to counsel exists in 42 U.S.C. § 1983 actions. Wahl v. McIver, 773 F.2d 1169, 1174 (11th Cir. 1985). Appointment of counsel is a privilege that is justified only by exceptional circumstances. McCall v. Cook, 495 F. App'x 29, 31 (11th Cir. 2012); Wahl, 773 F.2d at 1174.
To decide whether legal counsel should be provided, the Court typically considers, among other factors, the merits of the plaintiff's claim and the complexity of the issues presented. Holt v. Ford, 862 F.2d 850, 853 (11th Cir. 1989). Applying the standards set forth in Holt, it presently appears that the essential facts and legal doctrines in this case are ascertainable by Plaintiff without the assistance of court-appointed legal counsel, and that Plaintiff has not shown the existence of exceptional circumstances. As previously stated, the Court on its own motion will consider assisting Plaintiff in securing legal counsel if and when it becomes apparent that legal assistance is required in order to avoid prejudice to his rights. Accordingly, Plaintiff's Motions to Appoint Counsel (Docs. 48, 50, 54) are DENIED. Motion to Amend (Doc. 51)
On October 1, 2018, Plaintiff filed a Motion to Amend Complaint to Add Defendant and to Substitute Defendant. (Doc. 51). Plaintiff filed his initial Complaint on October 20, 2017. (Doc. 1). Plaintiff was ordered to recast his complaint using the standard form (Doc. 4), and the recast Complaint was filed on December 18, 2017 (Doc. 5). After reviewing the recast complaint, the undersigned ordered service on Defendants Williams, Jester, and Smith. (Doc. 9). Defendants Jester and Smith filed waivers of service on April 25, 2018 (Doc. 25), and filed an Answer on May 25, 2018 (Doc. 29). Defendant Williams has yet to be served. Plaintiff now seeks to amend his Complaint to substitute Defendant Williams with his successor, and to add Sergeant Biggs as a defendant. (Doc. 51).
Rule 15(a) of the Federal Rules of Civil Procedure provides, in part, as follows:
(1) Amending as a Matter of Course
A party may amend its pleading once as a matter of course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule12(b), (e), or (f), whichever is earlier.
(2) Other Amendments
In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.
As Plaintiff's Motion to Amend was not filed within twenty-one days of service of his pleading, a responsive pleading, or a motion under Rule 12(b), (e), or (f), and Defendants have not provided written consent, the Court must consider whether to grant leave to amend. FED. R. CIV. PRO. 15(a)(2).
The decision whether to grant leave to amend a pleading is within the discretion of the district court and is not automatic. Nat'l Serv. Indus. v. Vafla Corp., 694 F.2d 246, 249 (11th Cir. 1982). Although the decision to grant or deny a motion to amend a complaint is within the court's discretion, "a justifying reason must be apparent for denial of a motion to amend." Moore v. Baker, 989 F.2d 1129, 1131 (11th Cir. 1993). This Court may consider factors "such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of amendment, etc. . . . ." Foman v. Davis, 371 U.S. 178, 182 (1962).
Plaintiff seeks to amend his complaint by replacing Defendant Williams with his successor, and by adding Sergeant Biggs as a defendant. (Doc. 51). Defendants Jester and Smith were ordered to respond to Plaintiff's Motion to Amend. (Doc. 53). In their response, Defendants Jester and Smith assert that substitution of Defendant Williams is improper under Federal Rule of Civil Procedure 25(d), and Plaintiff's claim against Sergeant Biggs is barred by the statute of limitations. (Doc. 55). Substituting Defendant Williams
Rule 25(d) of the Federal Rules of Civil Procedure states: "[a]n action does not abate when a public officer who is a party in an official capacity dies, resigns, or otherwise ceases to hold office while the action is pending. The officer's successor is automatically substituted as a party." Plaintiff relies on Rule 25(d) to replace Defendant Williams with his successor since Defendant Williams no longer works at the Georgia Diagnostic and Classification Prison. (Docs. 51, 52). However, Rule 25(d) "appl[ies] whenever effective relief would call for corrective behavior by the one then having official status and power, rather than one who has lost the status and power through ceasing to hold office." FED. R. CIV. P. 25, advisory committee note, 1961 Amendment, Subdivision (d)(1).
Here, Plaintiff alleges Defendant Williams assaulted him and denied him medical treatment. (Doc. 5). Plaintiff asks the Court to punish Defendants, release Plaintiff, and order Defendants to pay compensatory and punitive damages. Id. The relief Plaintiff seeks does not call for corrective behavior by Defendant Williams' successor, which makes substitution under Rule 25(d) inapplicable. Further, "actions which are directed to securing money judgments against the named officers enforceable against their personal assets" are excluded under Rule 25(d). FED. R. CIV. P. 25, advisory committee note, 1961 Amendment, Subdivision (d)(1).
Accordingly, to the extent Plaintiff seeks to replace Defendant Williams with his successor, Plaintiff's Motion to Amend (Doc. 51) is DENIED.
Adding Sergeant Biggs
Defendants Jester and Smith assert that adding Sergeant Biggs as a defendant would be futile as any claims against him are barred by the statute of limitations. (Doc. 55). "Claims brought pursuant to 42 U.S.C. § 1983 are subject to the statute of limitations period governing personal injury actions in the state where the action is brought." Wellons v. Comm'r, Ga. Dep't of Corr., 754 F.3d 1260, 1263 (11th Cir. 2014). The statute of limitations period for tort actions in Georgia is two years. Id. The statute of limitations period begins to run when "the facts which would support a cause of action are apparent or should be apparent to a person with a reasonably prudent regard for his rights." Mullinax v. McElhenney, 817 F.2d 711, 716 (11th Cir. 1987).
It appears that Plaintiff is seeking to bring a failure to protect claim against Sergeant Biggs as Plaintiff alleges Sergeant Biggs did nothing to stop Defendant Williams' assault on Plaintiff. (Doc. 51). The facts supporting a cause of action for failure to protect would be apparent to a person with a reasonably prudent regard for his rights on the day the assault occurred. Sanderson v. Marion Cty. Jail Officials, 2016 WL 908221 at *3 (N.D. Ala. Feb. 10, 2016) (finding plaintiff's claim for failure to protect accrued on the day of the assault). As Plaintiff alleges the assault took place on November 14, 2015 (Doc. 51), it has been more than two years since the claim against Sergeant Biggs accrued.
However, Plaintiff can overcome the statute of limitations bar if his amendment relates back to the date of the original pleading by satisfying Federal Rule of Civil Procedure 15(c). Ga. S. Univ. Hous. Found. One, LLC v. Capstone Dev. Corp., 2018 WL 4954079 at *3-4 (S.D. Ga. Oct. 12, 2018). Plaintiff cannot satisfy Rule 15(c) because "the relation-back doctrine does not apply in instances where a plaintiff attempts to join entirely new defendants in addition to existing defendants." Id. at *5. Since Plaintiff seeks to add Sergeant Biggs as a defendant in addition to the existing Defendants, the relation-back doctrine does not apply and his claim would be barred by the statute of limitations. Therefore, Plaintiff's Motion to Amend (Doc. 51) is also DENIED to the extent Plaintiff seeks to add Sergeant Biggs as a defendant, because such amendment would be futile. Motion to be Transferred to Augusta Medical Prison and Motion for Permanent Injunction (Docs. 48 , 49)
In his Motion to be Transferred to Augusta Medical Prison (Doc. 48) and his Motion for Permanent Injunction (Doc. 49), Plaintiff seeks a transfer to Augusta Medical Prison in light of the conditions at Autry State Prison. (Docs. 48, 49). Plaintiff foremost describes riots in the form of prisoners opening their cells from the inside and running around with weapons, or burning mattresses, cardboard boxes, and plastic buggeys. (Doc. 48, 49). Plaintiff further describes that the prison has been on lock down and he is unable to receive any services, such as laundry, store call, cooked food, medical treatment, or access to the law library. (Doc. 48). Plaintiff alleges that these conditions pose a substantial risk of serious harm because he has filed grievances about them to no avail, and prison officials have threatened to murder him if he does not drop the lawsuit. (Doc. 49).
For a party to obtain a permanent injunction, the party must show:
(1) that he has prevailed in establishing the violation of the right asserted in his complaint; (2) there is no adequate remedy at law for the violation of this right; (3) irreparable harm will result if the court does not order injunctive relief; and (4) if issued, the injunction would not be adverse to public interest.Thomas v. Bryant, 614 F.3d 1288, 1317 (11th Cir. 2010). As Plaintiff has not yet prevailed in establishing the violations asserted in his Complaint, he is unable to receive a permanent injunction at this time.
Even if Plaintiff intended to seek a preliminary injunction, he still fails to make the required showing. For a party to obtain a preliminary injunction, the party must show:
(1) a substantial likelihood of success on the merits; (2) that the order is necessary to prevent irreparable injury; (3) that the threatened injury outweighs the harm that the
order would cause to the non-movant; and (4) that the order would not be adverse to the public interest.Powers v. Sec., Fla. Dep't of Corr., 691 F. App'x 581, 583 (11th Cir. 2017). A preliminary injunction is considered an extraordinary and drastic remedy, and as such, is not granted unless the movant clearly satisfies the burden of persuasion as to each of the four prerequisites. Id. The only prerequisite that Plaintiff remotely addresses in either of his Motions is irreparable injury by alleging anticipated retaliation, but this allegation is conclusory and speculative in nature. Parker v. Dubose, 2013 WL 424722 at *2 (N.D. Fla. Jan. 2, 2013) (noting the irreparable injury must be actual and imminent as opposed to remote or speculative). As such, Plaintiff is also not entitled to a preliminary injunction. Further, Plaintiff's request for transfer involves matters of internal prison administration with which federal courts are ill equipped to interfere. Id.
As such, the undersigned RECOMMENDS that Plaintiff's Motion to be Transferred to Augusta State Medical Prison (Doc. 48) and Motion for Permanent Injunction (Doc. 49) be DENIED.
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to these recommendations, or seek an extension of time to file objections, WITHIN FOURTEEN (14) DAYS after being served with a copy thereof. The district judge shall make a de novo determination as to those portions of the Recommendation to which objection is made; all other portions of the Recommendation may be reviewed by the district judge for clear error.
The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, "[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice."
SO ORDERED AND RECOMMENDED, this 26th day of October, 2018.
s/ THOMAS Q. LANGSTAFF
UNITED STATES MAGISTRATE JUDGE