Opinion
Case No. 3:10-cv-81-J-32JBT
03-21-2013
MICHAEL ANTWON HOWARD, Plaintiff, v. JACQUES MEMNON, et al., Defendants.
ORDER
This Cause is before the Court on a February 12, 2013 Report and Recommendation (Doc. #133), in which the assigned United States Magistrate Judge recommends that Defendants' Motion to Dismiss or in the Alternative Motion for Summary Judgment (Doc. #96) be granted and that Plaintiff's remaining claims be dismissed as frivolous. On March 1, 2013, Plaintiff filed a Sworn Affidavit (Doc. #134) and Objections to Mag. Judge Report and Recommendation (Doc. #135) (hereinafter Objections). Plaintiff also filed a Motion to Correct (Doc. #136) on March 13, 2013, and a Motion for Leave to Amend (Doc. #137) on March 18, 2013.
In this pleading, Plaintiff raises numerous objections, only one of which merits discussion. Plaintiff objects to the recommendation that Plaintiff's Eight Amendment claims against Dr. Trivino, Nurse Payne and Nurse Green (that they used or authorized the use of unjustified and excessive force to inject Plaintiff with Haldol and Benadryl without his consent) be dismissed as frivolous. Plaintiff now attempts to raise a new claim, that such an involuntary administration of drugs violated his due process rights in violation of Washington v. Harper, 494 U.S. 210, 221 (1990) (finding that mentally ill prisoners had a protected liberty interest in being free from the arbitrary and non-consensual administration of antipsychotic medications). See Objections (Doc. #135) at 5. Plaintiff may not attempt to raise such a new claim at this stage of the proceeding. See Glover v. Haynes, No. CV211-114, 2012 WL 1202170, at *2 (S.D. Ga. Apr. 10, 2012) ("To the extent Plaintiff attempts to use his Objections to the Magistrate Judge's Report and Recommendation to raise new claims, such an attempt is improper.").
It is well-settled in this circuit that a plaintiff may not amend the complaint through argument at the summary judgment phase of proceedings. See Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004) (per curiam) ("A plaintiff may not amend [his or her] complaint through argument in a brief opposing summary judgment."); see also Hurlbert v. St. Mary's Health Care Sys., Inc., 439 F.3d 1286, 1297 (11th Cir. 2006) ("At the summary judgment stage, the proper procedure for plaintiffs to assert a new claim is to amend the complaint in accordance with Fed.R.Civ.P. 15(a)." (quoting Gilmour, 382 F.3d at 1315)).
Upon review, it is hereby
ORDERED:
1. Plaintiff's Motion to Correct (Doc. #136) is GRANTED.
2. Plaintiff's Motion for Leave to Amend (Doc. #137) is DENIED.
3. Plaintiff's Objections (Doc. #135) are OVERRULED.
4. The Magistrate Judge's Report and Recommendation (Doc. #133) is hereby ADOPTED as the opinion of the Court.
5. Defendants' Motion to Dismiss or in the Alternative Motion for Summary Judgment (Doc. #96) is GRANTED.
6. The Clerk shall enter Judgment against Plaintiff and in favor of Defendants Robert Newell, Anthony Crosby, Julian Aviles, Jacques Memnon, Michael Davis, James Johns and Joseph Allen.
7. Plaintiff's remaining claims are DISMISSED with prejudice as frivolous.
8. Plaintiff's Motion to Reopen Discovery (Doc. #131) is DENIED.
9. The Clerk shall close the file.
DONE AND ORDERED at Jacksonville, Florida this 21st day of March, 2013.
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TIMOTHY J. CORRIGAN
United States District Judge
ps 3/21
c:
Michael Antwon Howard
Counsel of Record
GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1258 n.27 (11th Cir. 2012), cert. denied, 133 S.Ct. 856 (2013). Even assuming this Court should construe Plaintiff's Objections as a motion to amend, such a motion is due to be denied. The Court notes that the events in question occurred on February 24, 2008, and Plaintiff filed his Complaint over three years ago, on February 1, 2010. Thus, such a motion to amend should be denied based on Plaintiff's "undue delay" in seeking to raise this new due process claim. McKinley v. Kaplan, 177 F.3d 1253, 1258 (11th Cir. 1999) (per curiam) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).