BOLICK v. FAGAN et al

Filing 7

ORDER granting 2 Motion for Leave to Proceed in forma pauperis; ORDER to Recast Complaint; REPORT AND RECOMMENDATION re 3 MOTION Preliminary Injunction and a Temporary Restraining Order filed by MICHAEL J BOLICK. Ordered by US MAGISTRATE JUDGE STEPHEN HYLES on 6-29-15. (mpm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
MICHAEL J. BOLICK,

:
:
Plaintiff.
:
:
VS.
:
:
JOHN FAGAN, et al.,
:
:
Defendants.
:
_________________________________:

NO. 5:15-CV-211-CAR-MSH

ORDER AND RECOMMENDATION
Plaintiff Michael J. Bolick, an inmate at Hays State Prison (“Hays”), has filed a pro
se handwritten civil rights complaint under 42 U.S.C. § 1983 (ECF No. 1) as well as an
“Affidavit in Support of Claim” (ECF No. 1-1). Plaintiff has also filed an application for
leave to proceed in forma pauperis (“IFP”) (ECF No. 2) and a motion for a preliminary
injunction and temporary restraining order (“TRO”) (ECF No. 3). Plaintiff’s motions are
addressed below. As also indicated, Plaintiff must recast his complaint if he wishes to
proceed with this lawsuit.
I. MOTION TO PROCEED IFP
Based on Plaintiff’s submissions, the Court finds that Plaintiff is unable to prepay
the filing fee. Accordingly, the Court GRANTS Plaintiff’s motion to proceed IFP and
waives the initial partial filing fee pursuant to 28 U.S.C. § 1915(b)(1). Plaintiff is
nevertheless required to pay the full $350.00 filing fee, as will be directed in a future order.

II. SUMMARY OF CLAIMS
Plaintiff alleges claims against Defendants that arise at three different prisons:
Central State Prison (“CSP”), Hancock State Prison (“HSP”), and Hays.
A. CSP Claims
On March 31, 2015, Plaintiff and two other inmates were involved in an altercation
with two officers at Central State Prison (“CSP”). As a result of that altercation, Plaintiff
received two disciplinary reports and was criminally charged with assaulting a peace
officer. The following day, Plaintiff was placed in a cell with “nothing but the clothes on
[his] back[] and a bare mattress.” Compl. 7. His placement was allegedly ordered by
Defendant Deputy Warden John Fagan, and carried out by Defendant Lieutenant Arbra
Childs.

Plaintiff states that he was denied necessary hygiene items (specifically,

toothpaste, toothbrush, and a clean change of clothes) and showers from April 1, 2015 to
April 8, 2015. Defendants Fagan and Warden Berry allegedly ignored Plaintiff’s repeated
complaints. Plaintiff also filed a grievance and believes that Defendant Counselor Thorpe
prevented it from being considered.
B. HSP Claims
Plaintiff was transferred to Hancock State Prison (“HSP”) on April 8, 2015, where
he claims he was both sexually and physically assaulted upon his arrival by Defendant
John Doe Cert Team Officers. According to Plaintiff, Defendant CSP Transport Officer
Gerry Johnson and Defendant HSP personnel Warden Ronald Jones, Deputy Warden Ivey,
and Lieutenant J. Pless all watched the assault without intervening. Following treatment
in medical, Plaintiff was placed in HSP’s segregation unit, where he allegedly was denied
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hygiene items and clean clothes during his six day stay at HSP. While confined at HSP,
Plaintiff was informed that he was being assigned to the Tier II Program for assaulting an
officer. Plaintiff also complains that the unnamed HSP Chief Counselor failed to process
his grievance that he gave to her on April 13, 2015.
Plaintiff was transferred to Baldwin State Prison (“BSP”) (for a mental health
examination) and remained there from April 13, 2015 until May 5, 2015. He does not sue
any BSP Defendants, but does complain about Defendant Michael Ransom, a Unit
Manager at HSP, who held a disciplinary hearing at BSP relating to Plaintiff’s disciplinary
reports at CSP. Ransom found Plaintiff guilty and sentenced him to 28 days isolation and
240 days loss of privileges.
C. Hays Claims
Plaintiff was transferred to Hays on May 5, 2015, and placed in its Tier II Program.
He complains about conditions of confinement at Hays, e.g., that his cell is filthy, it took
three days for Plaintiff to get a roll of toilet paper and a bar of soap, that he has been denied
complete access to books and newspapers, and that he is “served cold and congealed food
on a daily basis.” Bolick Aff. 16.
III. ORDER TO RECAST
A plaintiff may set forth only related claims in one civil rights complaint. He may
not join unrelated claims and various defendants unless the claims arise “out of the same
transaction, occurrence, or series of transactions or occurrences” and “any question of law
or fact common to all defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2). As
recognized by the Eleventh Circuit, “a claim arises out of the same transaction or
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occurrence if there is a logical relationship between the claims.”

Construction

Aggregates, Ltd. v. Forest Commodities Corp., 147 F.3d 1334, 1337 n.6 (11th Cir. 1998).
Moreover, as the Seventh Circuit stated in George v. Smith, 507 F.3d 605, 607 (7th
Cir.2007), “[u]nrelated claims against different defendants belong in different suits, not
only to prevent the sort of morass that a [multi]-claim, [multi]-defendant suit produced but
also to ensure that prisoners pay the required filing fees.... A buckshot complaint that
would be rejected if filed by a free person-say, a suit complaining that A defrauded [him],
B defamed him, C punched him, D failed to pay a debt, and E infringed his copyright, all
in different transactions-should be rejected if filed by a prisoner.”
Plaintiff has failed to allege a logical relationship between his claims arising at CSP
and HSP, and his claims arising at Hays. The Court will allow Plaintiff to join the CSP
and HSP claims and Defendants in this lawsuit. Plaintiff has not, however, asserted facts
sufficient to support the Hays claims and Defendants being joined into the lawsuit.
Plaintiff’s conditions of his confinement at Hays appear to be unrelated to those he faced
at the other prisons.
In light of the foregoing, Plaintiff is hereby ORDERED to recast his complaint.
In drafting his recast complaint, Plaintiff must use this Court’s standard section 1983
complaint form, along with no more than fifteen (15) additional pages. The recast
complaint shall take the place of and supersede the complaint form and other
documents filed by Plaintiff to date. Plaintiff may not incorporate by reference any
portion of his original filings into the recast complaint.
In his recast complaint, Plaintiff should name only Defendants at CSP and HSP, and
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assert only claims arising out of those two prisons. If Plaintiff wishes to bring a lawsuit
arising out of events occurring at Hays, he must file a separate complaint form, with the
United States District Court for the Northern District of Georgia (where Hays is located).
Plaintiff shall have TWENTY-ONE (21) DAYS from the date of this Order to file
his recast complaint. While this action is pending, Plaintiff shall immediately inform the
Court in writing of any change in his mailing address. If Plaintiff decides that he no
longer wishes to proceed with this lawsuit, he must so notify the Court. See Fed.R.Civ.P.
41(a). Plaintiff’s failure to fully and timely comply with this Order may result in the
dismissal of his complaint.
The Clerk of Court is DIRECTED to mail Plaintiff a section 1983 complaint form,
which should show the number of the instant case.
IV. MOTION FOR A PRELIMINARY INJUNCTION AND TRO
Plaintiff’s request for injunctive relief relates solely to his confinement at Hays.
(ECF No. 3). Accordingly, it is RECOMMENDED that said request be DENIED. If
Plaintiff wishes to pursue injunctive relief, he may so request in his separate action relating
to Hays and filed in the Northern District of Georgia.
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections
to this Recommendation, or seek an extension of time to file objections, within fourteen
(14) days after being served with a copy hereof. The District Judge shall make a de novo
determination of those portions of the Recommendation to which objection is made. All
other portions of the Recommendation may be reviewed for clear error.

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The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, “[a]
party failing to object to a magistrate judge’s findings or recommendations contained in a
report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1)
waives the right to challenge on appeal the district court’s order based on unobjected-to
factual and legal conclusions if the party was informed of the time period for objecting and
the consequences on appeal for failing to object. In the absence of a proper objection,
however, the court may review on appeal for plain error if necessary in the interests of
justice.”
SO ORDERED AND RECOMMENDED, this 29th day of June, 2015.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE

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