Faircloth v. Baden et al

Filing 87

ORDER denying 31 Motion ; denying 64 Motion ; adopting Report and Recommendations re 65 Report and Recommendations.; denying 17 Motion ; denying 18 Motion ; denying 22 Motion for Preliminary Injunction; granting 24 Motion to Dismiss. Plaintiff's Objections 69 are overruled. Ordered by Judge W. Louis Sands on 8/16/2012 (bcl)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ALBANY DIVISION
DON ROBERT FAIRCLOTH,

:
:
Plaintiff,
:
:
v.
:
:
WARDEN JOSEPH BADEN, and
:
MEDICAL DIRECTOR TIFFANY
:
WHATLEY
:
Defendants.
:
____________________________________:

CASE NO.: 1:11-CV-86 (WLS)

ORDER
Before the Court is an Order and Recommendation from United States Magistrate Judge
Thomas Q. Langstaff (Doc. 65). The Order and Recommendation, filed April 9, 2012, denies
Plaintiff’s Motion for Order Directing Defendants Reply (Doc. 21), denies Plaintiff’s Motion to
Begin Discovery (Doc. 43), Amended Motion for Discovery (Doc. 45), and Motion for Rule
26(f) Meeting (Doc. 19), denies Plaintiff’s Motions to Proceed with Claims (Docs. 41, 55),
denies Plaintiff’s Motion to Add Defendant Baden’s Successor as a Defendant (Doc. 39), denies
Plaintiff’s Motion for a Hearing (Doc. 57), and denies-in-part and grants-in-part Plaintiff’s
Motion to Amend (Doc. 32); and recommends that: (1) Plaintiff’s Motions Seeking Injunctive
Relief (Docs. 17, 18, 22, 31, and 64) be denied; and (2) Defendants’ Motion to Dismiss (Doc.
24) be granted.

Plaintiff timely filed his Objections to Magistrate Judge’s Order and

Recommendation (Doc. 69). Defendants thereafter filed a Response to Plaintiff’s Objections to
the Magistrate Judge’s Order and Recommendation (Doc. 72).1

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On May 22, 2012, well past the expiration of the 14-day period of objections and without prior authorization from
the Court, Plaintiff filed an Amended Objection (Doc. 74). Besides its untimeliness, the Objection simply reargues
the same allegations Plaintiff made in his original Objection (Doc. 69) and contains new allegations regarding an
alleged conspiracy. As such, it will not be considered by the Court.

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For the following reasons, the objections set forth in Plaintiff’s Objections (Doc. 69) are
OVERRULED, and United States Magistrate Judge Langstaff’s April 9, 2012 Order and
Recommendation (Doc. 65), is ACCEPTED, ADOPTED and made the Order of this Court for
reason of the findings made and reasons stated therein together with the reasons stated and
conclusions reached herein.

Accordingly, Plaintiff’s Motion for Order Directing Defendants

Reply (Doc. 21), Motion to Begin Discovery (Doc. 43), Amended Motion for Discovery (Doc.
45), Motion for Rule 26(f) Meeting (Doc. 19), Motion for a Hearing (Doc. 57), Motions to
Proceed with Claims (Docs. 41, 55), Motion to Add Defendant Baden’s Successor as a
Defendant (Doc. 39), and Plaintiff’s Motions Seeking Injunctive Relief (Docs. 17, 18, 22, 31,
and 64) are DENIED, Plaintiff’s Motion to Amend (Doc. 32) is DENIED-IN-PART and
GRANTED-IN-PART and Defendants’ Motion to Dismiss (Doc. 24) is GRANTED.
I.

PLAINTIFF’S OBJECTION TO APRIL 9, 2012 ORDER
Plaintiff objects to the rulings made in Judge Langstaff’s April 9, 2012 Order (Doc. 65)

regarding Plaintiff’s Motion to Begin Discovery (Doc. 43), Amended Motion for Discovery
(Doc. 45), Motion for Rule 26(f) Meeting (Doc. 19), Motions to Proceed with Claims (Docs. 41,
55), Motion for a Hearing (Doc. 57), and Plaintiff’s Motion to Amend (Doc. 32).
Federal Rule of Civil Procedure 72(a) states that a “party may serve and file objections
to” a Magistrate Judge’s non-dispositive order, and “[t]he district judge in the case must consider
timely objections and modify or set aside any part of the order that is clearly-erroneous or is
contrary to law.” Fed. R. Civ. P. 72(a); see also 28 U.S.C. § 636(b)(1)(A) (reciting
same “clearly erroneous or contrary to law” standard). Clear error is a highly deferential
standard of review. As the Supreme Court has explained, a finding is ‘clearly erroneous’ when
although there is evidence to support it, the reviewing court on the entire evidence is left with the

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definite and firm conviction that a mistake has been committed.” Holton v. City of Thomasville
Sch. Dist., 425 F.3d 1325, 1350 (11th Cir. 2005) (internal citations and quotation marks
omitted). The standard for overturning a Magistrate Judge's non-dispositive order is “a very
difficult one to meet.” Thornton v. Mercantile Stores Co., Inc., 180 F.R.D. 437, 439
(M.D.Ala.1998) (internal quotation marks omitted).
The Court will now address Plaintiff’s Objections to Judge Langstaff’s April 9, 2012
Order.
a. Motions Pertaining to Discovery (Docs. 19, 43, 45)
Plaintiff fails to provide any authority challenging Judge Langstaff’s Order holding that
Plaintiff does not need the Court’s permission to proceed with discovery regarding the
exhaustion issue, and § 1983 actions brought by pro se prisoners are exempted from the required
Rule 26 meeting between the parties. Instead, Plaintiff simply asserts that Judge Langstaff has
ignored Plaintiff’s motions to begin discovery related to exhaustion of administrative remedies
and that the evidence Plaintiff holds cannot safely be presented outside of an evidentiary hearing.
(Doc. 69 at 2-3). Plaintiff fails to identify his “evidence” or explain why it could not be
presented without an evidentiary hearing. Accordingly, the Court is not convinced that Judge
Langstaff’s denial of Plaintiff’s Motions pertaining to discovery (Docs. 19, 43, 45) was in clear
error or contrary to law, and Plaintiff’s Objections to Judge Langstaff’s April 9, 2012 Order
regarding Plaintiff’s Motion to Begin Discovery (Doc. 43), Amended Motion for Discovery
(Doc. 45) and Motion for Rule 26(f) Meeting (Doc. 19) are OVERRULED.
b. Motions to Proceed with Claims (Docs. 41, 55)
Again, Plaintiff fails to provide any authority demonstrating Judge Langstaff’s Order was
in clear error or contrary to law.

Instead, Plaintiff simply issues another demand for an

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evidentiary hearing. (Doc. 69 at 3). Accordingly, Plaintiff’s Objections to Judge Langstaff’s
April 9, 2012 Order regarding Plaintiff’s Motions to Proceed with Claims (Docs. 41, 55) are
OVERRULED.
c. Motion for a Hearing (Doc. 57)
Plaintiff’s objection maintains that he cannot safely mail evidence regarding exhaustion
of his administrative remedies and as such, he requires a hearing to present evidence that would
disprove Defendants’ contention that Plaintiff failed to administratively exhaust his claims.
(Doc. 69 at 3). Again, the Court is not convinced that Judge Langstaff’s denial of Plaintiff’s
Motion for a Hearing was in clear error or contrary to the law.

Plaintiff has had a fair

opportunity to respond to Defendants’ Motion to Dismiss, and in fact, has responded to the
Motion to Dismiss. (See Docs. 35, 41, 55). Plaintiff was noticed of his right to respond to
Defendants’ Motion to Dismiss and of the consequences of his failure to do so. (Doc. 28). Thus,
as Judge Langstaff finds, the Court should be able to resolve Defendants’ Motion to Dismiss on
briefing alone. Plaintiff’s bare assertion or belief that a hearing is required, appropriate, or
convenient is insufficient to show a hearing is required or necessary. Accordingly, Plaintiff’s
Objections to Judge Langstaff’s April 9, 2012 Order regarding Plaintiff’s Motion for a Hearing
(Doc. 57) are OVERRULED.
d. Plaintiff’s Motion to Amend (Doc. 32)
Plaintiff states that he should be permitted to join an additional defendant to the case.
(Doc. 69 at 5). According to Plaintiff, the “material evidence” he has gathered should override
Judge Langstaff’s finding that the amendment would prove futile. (Id.) However, Plaintiff does
not address Judge Langstaff’s finding that any amendments to Plaintiff’s pleading at this stage of

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the case would unduly prejudice Defendants. (Doc. 65 at 9). Nor did Plaintiff offer to Judge
Langstaff or this Court any of the “material evidence” he has allegedly gathered.
The Court is not convinced that Judge Langstaff’s denial of Plaintiff’s Motion to Amend
was in clear error or contrary to law. The Court finds no justification for Plaintiff’s great delay
in seeking this amendment well beyond the commencement of this case. Plaintiff knew of Dr.
Ayers well before the case began, as he indicated that Dr. Ayers allegedly refused to provide
medical care to Plaintiff in the Complaint itself. (Doc. 1 at 8). However, despite this knowledge,
Plaintiff failed to move to add Dr. Ayers when given the opportunity to Amend by the Court.
(Docs. 14, 28). Moreover, as Judge Langstaff noted, Plaintiff’s failure to demonstrate exhaustion
of his administrative remedies or even file a grievance as to his pending deliberate indifference
claims is similarly fatal to his proposed claims of deliberate indifference against Dr. Ayers,
rendering Plaintiff’s proposed amendments futile. See, e.g., Burger King Corp. v. Weaver, 169
F. 3d 1310, 1320 (11th Cir. 1999) (denial of leave to amend justified by futility when "complaint
as amended is still subject to dismissal"); Amick v. BM & KM, Inc., 275 F. Supp. 2d 1378, 1381
(N.D. Ga. 2003) (“In the Eleventh Circuit, a proposed amendment is futile when the allegations
of the proffered complaint would be unable to withstand a motion to dismiss.”). Accordingly,
Plaintiff’s Objections to Judge Langstaff’s April 9, 2012 Order regarding Plaintiff’s Motion to
Amend (Doc. 32) are OVERRULED.
To the extent that Plaintiff’s Objection (Doc. 69) fails to substantially address any
portion of Judge Langstaff’s Order (Doc. 65), the Court finds that any objections not made
thereto are WAIVED.

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II.

PLAINTIFF’S OBJECTION TO MARCH 13, 2012 RECOMMENDATION
Judge Langstaff’s April 9, 2012 Recommendation recommends that Plaintiff’s Motions

Seeking Injunctive Relief (Docs. 17, 18, 22, 31, and 64) be denied and that Defendants’ Motion
to Dismiss (Doc. 24) be granted. (Doc. 65).
a. Plaintiff’s Motions Seeking Injunctive Relief (Docs. 17, 18, 22, 31, and 64)
Plaintiff’s Objection (Doc. 69) does not adequately challenge Judge Langstaff’s finding
that Plaintiff has failed to present an adequate basis for injunctive relief.

(Doc. 65 at 2).

Plaintiff identifies no evidence showing that he is likely to prevail on the merits of his claims that
he was not receiving medical care, that he was the subject of retaliation, and that his physical
evidence was in danger of being seized by prison authorities. Instead of pointing to evidence
presented in his pleadings, Plaintiff asserts that he is not required to wait for “tragic event[sic]”
before obtaining relief. (Doc. 69 at 2).

However, as Judge Langstaff noted, a preliminary

injunction will not be granted unless the movant clearly carries the burden of persuasion as to the
four prerequisites. (Doc. 65 at 2). Plaintiff’s objections do not meet that burden. Accordingly,
the Court finds that Plaintiff’s Objection (Doc. 69) to Judge Langstaff’s April 9, 2012
Recommendation recommending that Plaintiff’s Motions Seeking Injunctive Relief (Docs. 17,
18, 22, 31, and 64) be denied fails to rebut the legally sound findings of Judge Langstaff, and is
OVERRULED.
b. Defendants’ Motion to Dismiss
Plaintiff’s Objection to the Recommendation’s findings as to Defendants’ Motion to
Dismiss primarily contends that the Recommendation is improper because Plaintiff has
exhausted his administrative remedies. (Doc. 69 at 4). Plaintiff asserts that the Federal Rules of
Civil Procedure require the Court to accept the facts as pled by Plaintiff in his Complaint, and in

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addition, Plaintiff has “substantial evidence” to support his claims and his allegations that
Defendant Spann lied in his affidavit. (Id.) However, Plaintiff fails to provide any evidence
supporting his assertions. Instead, he repeats his demand for an evidentiary hearing based on his
claim that the prison mail service cannot be trusted.
Notwithstanding Plaintiff's concern regarding the security of the prison mail system and
Plaintiff's ability to securely deliver documents to the Court that are relevant to the Court's
consideration of Defendants’ Motion to Dismiss, Plaintiff’s suspicion alone does not excuse
Plaintiff’s failure to forward his alleged evidence to the Court. The Court is not required to
reference documentary evidence to resolve a motion to dismiss, although the Parties' reference to
and reliance on such documents and facts beyond the pleadings are permitted at this stage when
properly provided. See Woods v. Southern Co., 396 F.Supp.2d 1351, 1359 (N.D. Ga. 2005) (
“The Eleventh Circuit ... has ... permitted reference to a document attached to a motion to
dismiss, ... where the attached document is ‘central to the plaintiff's claim’ and is ‘undisputed’
....“ (emphases added) (citation omitted)).
Plaintiff’s objections ignore Judge Langstaff’s findings that Plaintiff did not exhaust the
claims underlying his lawsuit, and ignore the legal standard used to decide a motion to dismiss
for failure to exhaust administrative remedies. As Judge Langstaff noted, the Court, pursuant to
the first step of the Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008), did accept
Plaintiff’s allegations as true and found that Plaintiff’s claims were not subject to dismissal.
(Doc. 65 at 5). However, Plaintiff’s Objection fails to address the second step of the Turner
analysis, which requires the Court to make factual findings to resolve the disputed factual issue
related to exhaustion. Plaintiff, although given the opportunity to challenge the factual evidence
submitted by Defendants, chose not to do so. In light of the evidence before the Court, Judge

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Langstaff correctly found that Plaintiff failed to exhaust the administrative remedies available to
him by failing to complete the grievance process. (Id. at 6). Plaintiff identifies no evidence in
his objection that challenges Judge Langstaff’s finding, instead offering bare assertions to
support his arguments. Accordingly, the Court finds that Plaintiff’s Objection (Doc. 69) to Judge
Langstaff’s April 9, 2012 Recommendation recommending that Defendants’ Motion to Dismiss
(Doc. 24) be granted fails to rebut the legally sound findings of Judge Langstaff, and is
OVERRULED.
To the extent that Plaintiff’s Objection (Doc. 69) fail to address recommendations made
in Judge Langstaff’s Recommendation (Doc. 65), the Court finds that any objections not made
thereto are WAIVED.
CONCLUSION
Accordingly, the objections set forth in Plaintiff’s Objections (Doc. 69) are
OVERRULED, and United States Magistrate Judge Langstaff’s April 9, 2012 Order and
Recommendation (Doc. 65), is ACCEPTED, ADOPTED and made the Order of this Court for
reason of the findings made and reasons stated therein together with the reasons stated and
conclusions reached herein. Plaintiff’s Motion for Order Directing Defendants Reply (Doc. 21),
Motion to Begin Discovery (Doc. 43), Amended Motion for Discovery (Doc. 45), Motion for
Rule 26(f) Meeting (Doc. 19), Motion for a Hearing (Doc. 57), Motions to Proceed with Claims
(Docs. 41, 55), Motion to Add Defendant Baden’s Successor as a Defendant (Doc. 39), and
Plaintiff’s Motions Seeking Injunctive Relief (Docs. 17, 18, 22, 31, and 64) are DENIED,

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Plaintiff’s Motion to Amend (Doc. 32) is DENIED-IN-PART and GRANTED-IN-PART and
Defendants’ Motion to Dismiss (Doc. 24) is GRANTED.

SO ORDERED, this 16th day of August, 2012.

/s/ W. Louis Sands
THE HONORABLE W. LOUIS SANDS,
UNITED STATES DISTRICT COURT

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