MORRIS v. MORALES et al

Filing 76

ORDER granting 38 Motion to Dismiss Complaint; granting 40 Motion to Dismiss Complaint; adopting 47 Report and Recommendations.; adopting in part 61 Report and Recommendations.Ordered by U.S. District Judge W LOUIS SANDS on 9/3/14 (wks)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ALBANY DIVISION
ISAAC MORRIS
Plaintiff,
v.
WARDEN JOSE MORALES, et al.
Defendants.

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Case No. 1:13-cv-21 (WLS)

ORDER
This is a 42 U.S.C. § 1983 case asserting several claims against Defendants at Johnson
State Prison and Autry State Prison. Before the Court are two Orders and Recommendations
from Magistrate Judge Thomas Q. Langstaff. In the first Order and Recommendation,
issued February 19, 2014, Judge Langstaff recommends dismissal of the claims against
Defendants Murry and Doe. (Doc. 47 at 5.) In the second Order and Recommendation,
issued April 22, 2014, Judge Langstaff recommends granting Defendants Allen’s and
McCraw’s Motion to Dismiss. (Doc. 61 at 5.) Judge Langstaff also recommends allowing the
voluntary withdrawal of claims against Defendants Morales and Ajibade and finding
Defendants Morales’ and Ajibade’s Motion to Dismiss for Improper Venue moot. (Id. at 2.)
After a de novo review of the motions and recommendations, the Court adopts the February
19, 2014 Order and Recommendation, adopts the April 22, 2014 recommendation to dismiss
the claims against Defendants Allen and McCraw, and declines to adopt the
recommendation as to the claims against Defendants Morales and Ajibade.

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The Recommendations provided the Parties with fourteen (14) days from the date of
service to file written objections to the recommendations therein. (Docs. 47 at 5-6; 61 at 6.)
The period for filing objections to the first Order and Recommendation expired on March 5,
2014. Plaintiff filed an untimely objection on March 7, 2014. (Doc. 52.) This Court, in its
discretion, would consider Plaintiff’s untimely Objections, but Plaintiff does not specifically
object to the recommendations in Judge Langstaff’s February 19, 2014 Order and
Recommendation. (See Doc. 52.) Therefore, upon full review and consideration upon the
record, the Court finds that Judge Langstaff’s Recommendation that Defendants Murry and
Doe be dismissed should be, and hereby is, ACCEPTED, ADOPTED and made the
Order of this Court for reason of the findings made and reasons stated therein. Accordingly,
Plaintiff’s Objections (Doc. 52) are OVERRULED.
Turning to the second Order and Recommendation, the period for filing objections
expired on May 6, 2014. Defendant timely filed an Objection to the Order and
Recommendation on May 5, 2015. (Doc. 66.) The Court addresses the May 5, 2014
Objections in turn.
Under 28 U.S.C. § 636, “a [district court] judge . . . shall make a de novo
determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(A). Plaintiff objects to
the dismissal of Defendants Allen and McCraw and rescinds his withdrawal of his claims
against Defendants Morales and Ajibade. (Doc. 66 at 1, 2.)
As to the dismissal of Plaintiff’s claims against Defendants Allen and McCraw, the
Court agrees with Judge Langstaff that Plaintiff has failed to state a claim upon which relief

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can be granted. (Doc. 61 at 2.) Plaintiff alleges that Defendants Allen and McCraw failed to
assist Plaintiff in obtaining access to law books while he was confined in segregation. (Doc.
12 at 6.) However, Plaintiff’s allegations do not rise above an “unadorned, the-defendantunlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Plaintiff has
not pleaded actual injury as a result of his alleged denial of access to law books as is required.
Cunningham v. District Attorney’s Office for Escambia County, 592 F.3d 1237, 1271 (11th Cir.
2010). Plaintiff has also not pleaded facts indicating that Defendants Allen and McCraw
denied him access to law books; rather he alleges that they did not provide him with the
assistance he wanted. (Doc. 12 at 6.)
In his objections, Plaintiff contends that he submitted transcript excerpts from an
evidentiary hearing on his habeas petition as evidence that he was actually injured by his
inability to access the law library. (Doc. 66 at 2.) Plaintiff submitted three pages of hearing
transcript excerpts along with his “Brief in Support of Response against Dismissal of
Action,” which he filed “in support of ALL” his motions and briefs. (Doc. 69 at 1.)
However, a Rule 12(b)(6) motion to dismiss is to be decided on the pleadings. See Property
Management & Investments, Inc. v. Lewis, 752 F.2d 599 (11th Cir. 1985). If a district court, in its
discretion, chooses to consider outside evidence, the court must convert the motion to a
motion for summary judgment. Id. The Court declines to consider the hearing transcript
excerpts. The Court thus finds that Plaintiff has failed to state a claim upon which relief can
be granted against Defendants Allen and McCraw.
Upon reviewing Defendants Morales’ and Ajibade’s Motion to Dismiss for Improper
Venue, Judge Langstaff recommended that the claims against Defendants Morales and

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Ajibade be dismissed without prejudice and the Defendants’ Motion be found moot based
on Plaintiff’s withdrawal of his claims in his Response to Defendants’ Motion to Dismiss.
(Docs. 61 at 2; 53 at 3.) However, in his Objections, Plaintiff rescinds his withdrawal of the
claims against Morales and Ajibade. (Doc. 66 at 1 (“I cannot withdraw or abandon my effort
for relief in this case against Jose Morales and Caleb Ajibade.”).) Thus, this Court will
consider whether venue is proper for the claims against Jose Morales and Calab Ajibade.
Under Federal Rule of Civil Procedure 12(b)(3), a district court is permitted to
dismiss a claim for improper venue. The plaintiff bears the burden of proving the venue is
proper. Delong Equipment Co. v. Washington Mills Abrasive Co., 840 F.2d 843, 845 (11th
Cir.1988). Venue is proper in “a judicial district in which any defendant resides, if all
defendants are residents of the State in which the district is located” or in “a judicial district
in which a substantial part of the events or omissions giving rise to the claim occurred. . . .”
28 U.S.C. § 1391(b). The events giving rise to Plaintiff’s claims against Defendants Morales
and Ajibade occurred at Johnson State Prison, which is located in Johnson County, Georgia
in the Dublin Division of the U.S. District Court for the Southern District of Georgia. (See
Doc. 12.) Plaintiff has not alleged that either of the Defendants resides in the Middle District
of Georgia. This Court finds that Plaintiff has not met his burden of establishing venue and
that venue is improper.
Therefore, upon full review and consideration of the record, the Court finds that
Judge Langstaff’s February 19, 2014 Order and Recommendation (Doc. 47) should be, and
hereby is, ACCEPTED, ADOPTED and made Order of this Court for reason of the
findings made, reasons stated, and conclusions therein, together with the findings made,

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reasons stated, and conclusions reached herein. Plaintiff’s claims against Defendants Murry
and Doe are DISMISSED.
Further, upon full review and consideration of the record, the Court ACCEPTS,
ADOPTS and makes Order of this Court Judge Langstaff’s April 22, 2014
Recommendation to Dismiss Plaintiff’s claims against Defendants Allen and McCraw for
reason of the findings made, reasons stated, and conclusions therein, together with the
findings made, reasons stated, and conclusions reached herein. (Doc. 61 at 2-6.) Defendants
Allen’s and McCraw’s Motion to Dismiss is GRANTED, and Plaintiff’s claims against
Defendants Allen and McCraw are DISMISSED.
Finally, upon full review and consideration of the record, the Court DECLINES to
adopt Judge Langstaff’s April 22, 2014 Recommendation to find Defendants Morales’ and
Ajibade’s Motion to Dismiss moot. (Doc. 61 at 2.) Defendants Morales’ and Ajibade’s
Motion to Dismiss Plaintiff’s Claim for Lack of Venue (Doc. 40) is DENIED without
prejudice for the purpose of transfer to the appropriate venue pursuant to the standing
policy of transfer among the U.S. District Courts in Georgia.
SO ORDERED, this 3rd day of September, 2014.
/s/ W. Louis Sands
W. LOUIS SANDS, JUDGE
UNITED STATES DISTRICT COURT

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