DAVIS v. UPTON et al
ORDER adopting 10 Report and Recommendations. Tt is hereby ORDERED that allclaims, except those excessive force claims against Defendant Officer Young and Deputy Warden Powell, be DISMISSED without prejudice. It is further ORDERED that Defendant Warden Powell now be served. Ordered by Judge C. Ashley Royal on 11/2/12 (lap)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
CASE NO: 5:12‐CV‐294‐CAR‐CHW
Warden STEVE UPTON, et. al.
PROCEEDINGS UNDER 42 U.S.C. ' 1983
BEFORE THE U.S. MAGISTRATE JUDGE
ORDER ON RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Plaintiff Patrick Davis, a prisoner currently confined at the Georgia Diagnostic
and Classification Prison (“GDCP”), filed this pro se civil rights complaint under 42
U.S.C. § 1983. As required, the United States Magistrate Judge conducted a preliminary
review of Plaintiffʹs Complaint and thereafter recommended the dismissal of various
claims and parties. See 28 U.S.C. § 1915A. Plaintiff has since filed a timely Objection
(ECF No. 13) to the Magistrate Judge’s Recommendation (ECF No. 10). Therein,
Plaintiff attempts to supplement his Amended Complaint.
Pursuant to 28 U.S.C. § 636(b)(1), this Court has thoroughly considered the
Recommendation of the United States Magistrate Judge, Plaintiff’s Objection, and his
additional allegations. After careful consideration, the Court accepts and adopts the
findings and conclusions the United States Magistrate Judge. However, in light of the
additional allegations in his Objection, Plaintiff will be permitted to go forward with his
claim against Defendant Warden Powell. See Newsome v. Chatham Cnty. Detention
Cntr., 256 F. App’x 342, 344‐45 (11th Cir. 2007) (“district court should have considered
[prisoner’s] additional allegations in the objection as a motion to amend his complaint
and granted it”).
Based on this and upon the Court’s own findings, it is hereby ORDERED that all
claims, except those excessive force claims against Defendant Officer Young and Deputy
Warden Powell, be DISMISSED without prejudice.1 See 28 U.S.C. § 1915A(b)(1); see
also Carter v. Galloway, 352 F.3d 1346, 1349 (11th Cir. 2003) (negligent failure to protect a
prison inmate from attack does not justify liability under § 1983); Kron v. LeBlanc, 2012
WL 4563957, at * 19 (E.D. La. Oct. 1, 2012) (“abrasions, bruises, mental anguish, swelling,
lacerations and a reopened surgical incision that healed on its own within two weeks”
did not constitute a serious medical need for constitutional purposes); Lockett v.
Suardini, 526 F.3d 866, 877 (6th Cir. 2008) (“minor lacerations and cuts” and soreness in
two fingers, which were no longer obvious upon medical examination within 24 hours
after altercation, were not serious medical needs).
It is further ORDERED that Defendant Warden Powell now be served and that he
file a Waiver of Reply, an Answer, or such other response as may be appropriate under
1 Washington v. Wigington, No. 1:12–CV–0637–WSD–JFK, 2012 WL 3834844 (N.D. Ga. July 27, 2012)
(“When a pro se plaintiff fails to state a claim and a more carefully drafted complaint might state a claim,
dismissal should be without prejudice.”); see also Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001).
Rule 12 of the Federal Rules of Civil Procedure, 28 U.S.C. § 1915, and the Prison
Litigation Reform Act. Defendant is also reminded of his duty to avoid unnecessary
expenses and of the possible imposition of expenses for failure to waive service under
SO ORDERED, this 2nd day of November, 2012.
S/ C. Ashley Royal
C. ASHLEY ROYAL, JUDGE
UNITED STATES DISTRICT COURT
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