NOLLEY v. NELSON et al
ORDER GRANTING 58 Motion for Reconsideration to properly consider Plaintiff's Objections at this time. However, after conducting a de novo review of the matters raised therein, the Court still adopts the findings and conclusions of the Magistrate Judge. Accordingly, as noted in its previous 54 Order, the Court GRANTS IN PART AND DENIESINPART Defendants Gregory McLaughlin, Tevonza Bobbitt,Samuel Ridley, Stephen Bostick, and Dorian Giless 21 Moti on to Dismiss.Plaintiff's claims against Defendant McLaughlin in his official capacity and Plaintiff's claims for compensatory and punitive damages are DISMISSED; but Plaintiff's Fourteenth Amendment claims against Defendants in their individual capacities for nominal damages may go forward. The Court DENIES Plaintiffs [19, 35, 46, 48] Motions to Supplement, and DENIES [31-1 Plaintiff's Motion for Preliminary Injunctive Relief. Thus, the 50 Report and Recommendation of the United States Magistrate Judge is hereby ADOPTED and MADE THE ORDER OFTHE COURT. Ordered by US DISTRICT JUDGE C ASHLEY ROYAL on 6/24/2016. (tlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
No. 5:15‐CV‐75 (CAR)
CYNTHIA NELSON, et al.,
ORDER ON THE REPORT AND RECOMMENDATION OF
THE UNITED STATES MAGISTRATE JUDGE
Before the Court is Plaintiff’s Motion for Reconsideration [Doc. 58] of the Court’s
Order [Doc. 54] adopting the Magistrate Judge’s Recommendation [Doc. 50] to grant‐in‐
part and deny‐in‐part Defendants Gregory McLaughlin, Tevonza Bobbitt, Samuel
Ridley, Stephen Bostick, and Dorian Giles’s Pre‐Answer Motion to Dismiss [Doc. 21]; to
deny Plaintiff’s Motions to Supplement [Docs. 19, 35, 46, 48]; and to deny Plaintiff’s
Motion for Preliminary Injunctive Relief [Doc. 31‐1].1 Defendants timely objected to the
Magistrate Judge’s Recommendation, and the Court reviewed de novo the portions of
the Magistrate Judge’s Recommendation to which Defendants objected. At the time the
Court issued its Order, it was unaware Plaintiff filed Objections because the Objections
were entered the same day the Court issued its Order, and thus the Court did not
1 Plaintiff filed a Response Brief [Doc. 31‐1] to Defendants’ Motion to Dismiss, which the
Magistrate Judge in his Recommendation construed as a Motion for Preliminary Injunctive
consider them in reviewing the Magistrate Judge’s Recommendation. Plaintiff’s
Objections, however, were dated March 22, 2016, and therefore were timely.
The Court must review the portions of the Recommendation Plaintiff timely
objected to de novo. The Court, therefore, GRANTS Plaintiff’s Motion for
Reconsideration [Doc. 58] to properly consider Plaintiff’s Objections at this time.2
However, after conducting a de novo review of the matters raised therein, the Court still
adopts the findings and conclusions of the Magistrate Judge for the reasons stated
Plaintiff objects on several grounds to the Magistrate Judge’s Recommendation
[Doc. 50].3 In his Recommendation, the Magistrate Judge recommends Plaintiff’s
Fourteenth Amendment claims proceed against Defendants in their individual
capacities for nominal damages, but Plaintiff’s claim against Defendant McLaughlin in
his official capacity and Plaintiff’s claims for injunctive relief, declaratory relief,
compensatory damages, and punitive damages be dismissed. Additionally, the
Magistrate Judge recommends Plaintiff’s motions to supplement be denied because the
claims therein are either unrelated to the transaction and occurrences underlying the
2 See Daker v. Commʹr, Georgia Depʹt of Corr., No. 14‐12139, 2016 WL 2342890, at *7 (11th Cir. May
4, 2016); see also Fed. R. Civ. Pro. 60(a) (allowing the court, either sua sponte or by motion, to
correct an order or judgment based on a clerical mistake, or mistake arising from oversight,
whenever one is found).
3 Plaintiff also objects to the Magistrate’s Judge’s Order denying his Motion to Appoint Counsel.
However, after reviewing Plaintiff’s arguments, the Court finds them unconvincing, and the
Court agrees with reasoning in the Magistrate Judge’s Order that Plaintiff does not meet the
original Complaint or were not properly exhausted. Plaintiff objects and contends the
claims in his supplemental complaints are not only sufficiently related, but properly
exhausted, and, therefore, his claims for injunctive relief and compensatory and
punitive damages should be permitted to go forward.
First, Plaintiff argues his confinement in Tier II Programs at both Valdosta State
Prison and Ware Prison, where Plaintiff is currently incarcerated, constitute a
“continuation” of his confinement in the Tier II Program at Macon State Prison because
he was automatically placed in Valdosta State’s and Ware’s Tier II Program due to his
classification in the program while he was at Macon State.4 Additionally, Plaintiff
alleges he was transferred to both Valdosta State and Ware in retaliation for filing this
lawsuit and continuing to file supplemental complaints. Based on these allegations,
Plaintiff contends his supplemental claims arise from the same transactions or
occurrences detailed in his Complaint and satisfy the requirements of Federal Rules of
Civil Procedure Rule 20.5 Plaintiff’s arguments, however, are merely reassertions of the
arguments put forth in his motions to supplement and his memorandums in support
thereof, all of which have been thoroughly addressed in the Magistrate Judge’s
4 Pl.’s Objs., [Doc. 53] at 1‐4.
5 Id. at 1.
Recommendation.6 The Court agrees with the Recommendation that Plaintiff’s motions
to supplement be denied.
Alternatively, Plaintiff argues his confinement in the Tier II Program at Macon
State, Valdosta State, and Ware should be construed as one violation by Homer Bryson,
the Commissioner of the Georgia Department of Correction (‘GDC”), because the Tier II
Program is part of a policy that is implemented statewide by GDC. In support of this
contention, Plaintiff points to a Seventh Circuit case, Lehn v. Holmes,7 for the proposition
that a prison transfer does not deprive a plaintiff of standing where the underlying
lawsuit is challenging a statewide policy.8 However, Plaintiff never asserts in his
original complaint, amended complaint, or proposed supplemental complaints that the
Tier II Program is a statewide policy that, either facially or as applied, operates to strip
prisoners of their due process rights.9
6 Plaintiff also avers that Defendants never argued that these proposed supplemental
complaints could not be joined pursuant to Rule 20. Pl.’s Objs., [Doc. 53] at 2. Plaintiff is
incorrect. While Defendants did not argue that the claims against the Valdosta State officials
constituted improper joinder, Defendants did allege that the claims against the Ware officials
could not be joined pursuant to Rule 20. Defs.’ Resp. in Opp’n of Pl.’s Third Mot. to Suppl.,
[Doc. 47] at 6‐7.
7 364 F.3d 862, 871 (7th Cir. 2004).
8 Pl.’s Objs., [Doc. 53] at 3.
9 Plaintiff does, however, assert a supplemental claim against Homer Bryson for “promulgating
a statewide policy which provides that the only religious literature the plaintiff is allowed to
possess is either a Bible or a Qur’an” in violation of his First Amendment rights. Second
Proposed Suppl. Compl. [Doc. 35‐1] at 11. Plaintiff also asserts a supplemental claim against
Bryson for his “endorsement . . . of the general restrictions and confinement conditions
characteristic of the statewide Tier II Program” and contending that these conditions are
intended to inflict physical and mental pain and thus constitute “torture in violation of 18
U.S.C. § 2340, as well as deliberate torture perpetuated under official authority in violation of
Next, Plaintiff contends his supplemental retaliation claims against Defendant
McLaughlin and Adrian Nelson were properly exhausted.10 Specifically, Plaintiff
argues administrative remedies were not available because, contrary to GDC Standard
Operating Procedures, he was not given a grievance appeal receipt. Thus, he believed
his grievance appeal was never actually submitted and waiting the 100 days for a
response would have been “an act of utter futility.”11 Plaintiff further contends that,
contrary to the findings in the Magistrate Judge’s Recommendation, he submitted his
grievance appeal on July 7, 2015, not on July 8, 2015.12 However, as the Magistrate
Judge noted in his Recommendation, “[t]he only facts pertinent to determining whether
a prisoner has satisfied the PLRAʹs exhaustion requirement are those that existed when
he filed his . . . complaint.”13 In light of Plaintiff’s clarification, at the time Plaintiff filed
his supplemental complaint on July 7, 2015, he had not submitted his grievance appeal.
Thus, Plaintiff had not even attempted to exhaust all administrative remedies at the
time he filed his supplemental complaint. Therefore, the Court is unconvinced by
universally accepted norms of the international law of human rights, i.e., the law of nations.”
Fourth Proposed Suppl. Compl., [Doc. 48‐1] at 10. These allegations also fail to satisfy the
requirements of Rule 20 as Plaintiff’s Fourteenth Amendment claims against Macon State
officials and the proposed First Amendment claims for the denial of religious materials by
Valdosta State officials and the “torture” claims by Ware officials do not contain “any question
of law or fact common to all defendants.” Fed. R. Civ. P. 20(a)(2)(B) (emphasis added).
10 Pl.’s Objs., [Doc. 53] at 4‐5.
11 Id. at 5.
12 Pl.’s Objs., [Doc. 53] at 5 (citing Pl.’s Memo. in Supp. of First Proposed Suppl. Compl., [Doc.
40] at 2).
13 Smith v. Terry, 491 F. App’x 81, 83 (11th Cir. 2012).
Plaintiff’s Objections, and agrees with the Magistrate Judge’s Recommendation to deny
Plaintiff’s motions to supplement his Complaint.
In his Objections, Plaintiff also takes issue with the Magistrate Judge’s
recommendation to dismiss his claims for injunctive relief and compensatory and
punitive damages. Plaintiff contends that if the Court grants his motions to supplement,
these claims should be permitted to move forward. The Court has considered all of
Plaintiff’s arguments; however, the Court is unpersuaded. For the reasons stated above,
the Court agrees with the Magistrate Judge that Plaintiff’s motions to supplement his
complaint should be denied, and thus his claims for injunctive relief and his claims for
compensatory and punitive damages should be dismissed.
Finally, Plaintiff argues Defendants McLaughlin, Bobbitt, Ridley, and Bostick
were not acting within the scope of their authority and so are not entitled to qualified
immunity. Plaintiff is incorrect. “[D]iscretionary authority  include[s] all actions of a
governmental official that (1) were undertaken pursuant to the performance of his
duties, and (2) were within the scope of his authority.”14 For purposes of the qualified
immunity analysis, the court does not “focus on whether the acts in question involved
the exercise of actual discretion[.]”15 Instead, “we assess whether [the acts] are of a type
that fell within the employee’s job responsibilities.”16 This contrasts with “many areas
14 Jordan v. Doe, 38 F.3d 1559, 1566 (11th Cir. 1994).
15 Holloman v. Harland, 370 F.3d 1252, 1265 (11th Cir. 2004).
other than qualified immunity,” in which “a ‘discretionary function’ is defined as an
activity requiring the exercise of independent judgment and is the opposite of a
‘ministerial task.’”17 Furthermore, “the inquiry is not whether it was within the
defendant’s authority to commit the allegedly illegal act. Framed that way, the inquiry
is no more than an untenable tautology.”18 Defendants, as members of the classification
committee, were clearly acting within their authority when they assigned Plaintiff to the
Tier II Program.
Having considered Plaintiff’s Objections, and reviewed the Recommendation de
novo, the Court finds them without merit. Thus, based on the foregoing, the Court
continues to agree with the Recommendation of the United States Magistrate Judge
[Doc. 50]. Accordingly, as noted in its previous Order [Doc. 54], the Court GRANTS‐
IN‐PART AND DENIES‐IN‐PART Defendants Gregory McLaughlin, Tevonza Bobbitt,
Samuel Ridley, Stephen Bostick, and Dorian Giles’s Motion to Dismiss [Doc. 21].
Plaintiff’s claims against Defendant McLaughlin in his official capacity and Plaintiff’s
claims for compensatory and punitive damages are DISMISSED; but Plaintiff’s
Fourteenth Amendment claims against Defendants in their individual capacities for
nominal damages may go forward. The Court DENIES Plaintiff’s Motions to
Supplement [Docs. 19, 35, 46, 48], and DENIES Plaintiff’s Motion for Preliminary
Injunctive Relief [Doc. 31‐1]. Thus, the Report and Recommendation of the United
18 Id. at 1266.
States Magistrate Judge [Doc. 50] is hereby ADOPTED and MADE THE ORDER OF
SO ORDERED, this 24th day of June, 2016
S/ C. Ashley Royal
C. ASHLEY ROYAL, JUDGE
UNITED STATES DISTRICT COURT
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