COUCH v TAYLOR

Filing 72

ORDER ADOPTING as modified 68 Report and Recommendations; DENYING 61 Defendant's Motion for Summary Judgment; DENYING 64 Plaintiff's Motion for Summary Judgment; DENYING 65 Plaintiff's Motion for Access and/or Assistance to Law Library; and DENYING 66 Plaintiff's Motion Requesting to be Moved to Safe Living Conditions. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 5/23/2016. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
GARY COUCH,
Plaintiff,
v.
Officer BRITTON,
Defendant.

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CIVIL ACTION NO. 5:15-CV-26 (MTT)

ORDER
United States Magistrate Judge Charles H. Weigle recommends denying the
Defendant’s motion for summary judgment (Doc. 61) because there is a genuine issue
of fact whether the Defendant applied force maliciously and sadistically to cause harm
and the Defendant is not entitled to qualified immunity. (Doc. 68). The Magistrate
Judge also recommends denying the Plaintiff’s “Motion Requesting to be Moved to Safe
Living Conditions” (Doc. 66) and “Motion for Access and/or Assistance to Law Library”
(Doc. 65). The Plaintiff has objected to the Recommendation. (Doc. 69). Pursuant to
28 U.S.C. § 636(b)(1), the Court has reviewed the Plaintiff’s objection and has made a
de novo determination of the portions of the Recommendation to which the Plaintiff
objects.
It appears from the Plaintiff’s objection that he seeks summary judgment in his
favor against the Defendant. (Doc. 69 at 2). Indeed, the Plaintiff labeled his second
response to the Defendant’s motion for summary judgment as a “Notice of Summary
Judgment Motion” in which he asked for “[f]inal [j]udgment” to be entered on his “claims
without a trial.” (Doc. 64 at 1). The Court construes this response as the Plaintiff’s

motion for summary judgment. The Plaintiff objects to the Magistrate Judge not
recommending the Court grant his motion for summary judgment.1 The Magistrate
Judge set the dispositive motion deadline for January 14, 2016 (Doc. 60), but the
Plaintiff did not file his motion for summary judgment until February 8, 2016. Where a
motion for summary judgment is filed after the district court’s deadline for dispositive
motions, the district court may properly deny it as untimely. Dedge v. Kendrick, 849
F.2d 1398, 1398 (11th Cir. 1988); T.H.E. Ins. Co. v. Cochran Motor Speedway, 2010
WL 5351183, at *2 (M.D. Ga.). Therefore, the Court denies the Plaintiff’s motion for
summary judgment (Doc. 64) as untimely.
The Court has reviewed the Recommendation, and the Court adopts the findings,
conclusions, and recommendations of the Magistrate Judge. The Recommendation is
ADOPTED as modified and made the Order of this Court. Accordingly, the
Defendant’s motion for summary judgment (Doc. 61) and the Plaintiff’s motion for
summary judgment (Doc. 64) are DENIED. The Plaintiff’s “Motion Requesting to be
Moved to Safe Living Conditions” (Doc. 66) and “Motion for Access and/or Assistance to
Law Library” (Doc. 65) are DENIED.
SO ORDERED, this 23rd day of May, 2016.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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The Plaintiff also emphasizes in his objection that his injuries were more than de minimis. (Doc. 69 at 12). This appears to be in response to the Defendant’s argument that the Plaintiff may only recover
nominal damages if he prevails. (Doc. 61-2 at 9). There is evidence that the Plaintiff may have suffered
more than de minimis injuries. (Docs. 61-3 at 40:13-16, 54:4-10, 55:12-14, 58:8-10; 61-7 at 1-4; 61-11 at
2). Thus, the issues of liability and damages will be left to the jury.
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