LUDY v. NELSON et al

Filing 92

ORDER ADOPTING 86 Report and Recommendations. 73 Plaintiff's fifth motion to amend is GRANTED. 78 Plaintiff's sixth motion to amend is GRANTED in part, such that Chaplain Michael Sapp is added as a Defendant and it is ORDERED that service be made on Defendant Michael Sapp, but DENIED in part as to Officer Robinson. 67 Defendant's motion to dismiss is GRANTED in part and DENIED in part. The motion is GRANTED as to Plaintiff's cl aims for relief under RLUIPA, for declaratory and injunctive relief under § 1983, and for monetary damages against the Defendants in their official capacities under § 1983. The motion to dismiss is DENIED as to the Plaintiff's claims under § 1983 for nominal damages against the Defendants in their individual capacities. The claims against Defendant Nelson are DISMISSED and Defendant Nelson is DISMISSED as a party to this action. Ordered by U.S. District Judge MARC THOMAS TREADWELL on 3/25/2015. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
MITCHELL LAVERN LUDY,
Plaintiff,
v.
CYNTHIA NELSON, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

CIVIL ACTION NO. 5:14-CV-73 (MTT)

ORDER
Before the Court is a Report and Recommendation of United States Magistrate
Judge Charles H. Weigle (Doc. 86) on the Defendants’ motion to dismiss (Doc. 67).
The Magistrate Judge recommends granting in part and denying in part the motion to
dismiss, granting the Plaintiff’s fifth motion to amend (Doc. 73), and granting in part and
denying in part his sixth motion to amend (Doc. 78). Both the Plaintiff and the
Defendants have filed an objection. (Docs. 87; 90). The Court has thoroughly
considered the Parties’ objections and has made a de novo determination of the
portions of the Recommendation to which the Parties object.
In his objection, the Plaintiff makes new allegations and attempts to inject a new
theory of recovery into the case. The Court construes this portion of the objection as a
motion to amend the complaint. See Newsome v. Chatham Cnty. Det. Ctr., 256 F.
App’x 342, 344 (11th Cir. 2007) (holding district court should have considered new
allegations in objection as motion to amend the complaint). First, the Plaintiff alleges
that his claims “arise[] from the decision of Cynthia Nelson and the warden officials” and

that “Defendant Gramiak stated several times that he was following the orders of his
boss ‘Cynthia Nelson,’ as did the other Defendant(s).” (Doc. 87 at 1). Second, the
Plaintiff alleges that “Dooly State Prison, Johnson State Prison and other Georgia
Department of Correction prison facilities ha[ve] polic[ies] in place that allow Muslims,
Catholics, and Christians to pray together, but won’t allow the same thing for Hebrew
Israelites.” (Doc. 87 at 5). The Plaintiff claims “his rights to equal protection and due
process of law have been abridged by the procedures utilized by the Defendants in
circumscribing the Plaintiff[’s] religious practice in violation of the Fourteenth
Amendment.” (Doc. 87 at 5).
Pursuant to Fed. R. Civ. P. 15(a)(2), leave to amend should be “freely give[n] ...
when justice so requires.” The Court “need not, however, allow an amendment (1)
where there has been undue delay, bad faith, dilatory motive, or repeated failure to cure
deficiencies by amendments previously allowed; (2) where allowing amendment would
cause undue prejudice to the opposing party; or (3) where amendment would be futile.”
Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001) (citing Foman v. Davis, 371
U.S. 178, 182 (1962)). The Plaintiff has previously moved to amend his complaint six
times. (Docs. 6; 7; 40; 60; 73; 78). Nothing suggests that these allegations and theory
of recovery were unknown to the Plaintiff at the time he filed his original complaint or his
previous motions to amend. See Carruthers v. BSA Adver., Inc., 357 F.3d 1213, 1218
(11th Cir. 2004); Nat’l Serv. Indus., Inc. v. Vafla Corp., 694 F.2d 246, 249 (11th Cir.
1982). Moreover, the Plaintiff offers no explanation as to why the interests of justice
require leave to amend or why he waited until after the Magistrate Judge’s
Recommendation to make these allegations and raise this theory of recovery. See

-2-

Andrx Pharm., Inc. v. Elan Corp., PLC, 421 F.3d 1227, 1237 (11th Cir. 2005).
Therefore, the Court finds the Plaintiff unduly delayed in seeking to amend and the
motion is denied.
The Court has reviewed the Recommendation and accepts and adopts the
findings, conclusions, and recommendations of the Magistrate Judge. The
Recommendation is ADOPTED and made the order of this Court. Accordingly, the
Plaintiff’s fifth motion to amend (Doc. 73) is GRANTED. The Plaintiff’s sixth motion to
amend (Doc. 78) is GRANTED in part, such that Chaplain Michael Sapp is added as a
Defendant and it is ORDERED that service be made on Defendant Michael Sapp, but
DENIED in part as to “Officer Robinson.” The Defendant’s motion to dismiss (Doc. 67)
is GRANTED in part and DENIED in part. The motion is GRANTED as to Plaintiff’s
claims for relief under RLUIPA, for declaratory and injunctive relief under § 1983, and
for monetary damages against the Defendants in their official capacities under § 1983.
The motion to dismiss is DENIED as to the Plaintiff’s claims under § 1983 for nominal
damages against the Defendants in their individual capacities. The claims against
Defendant Nelson are DISMISSED and Defendant Nelson is DISMISSED as a party to
this action.
SO ORDERED, this 25th day of March, 2015.
S/ Marc T. Treadwell
MARC T. TREADWELL
UNITED STATES DISTRICT COURT

-3-