MOODY v EUTSEY et al

Filing 42

ORDER ADOPTING, as clarified, 39 Report and Recommendations; GRANTING 23 Motion to Dismiss; DENYING as moot 31 Motion to Dismiss Party; GRANTING 34 Motion to Dismiss; and DENYING as moot 36 Motion to Amend/Correct. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 11/3/2016. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
JEREMY MOODY,
Plaintiff,
v.
DEPUTY WARDEN KEITH
EUTSEY, et. al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

CIVIL ACTION NO.
5:15-CV-348-MTT-MSH

ORDER ADOPTING REPORT & RECOMMENDATION
United States Magistrate Judge Stephen Hyles recommends granting the
Defendants’ motions to dismiss (Docs. 23-1; Doc. 34) as a sanction for the Plaintiff’s
abuse of process. (Doc. 39). Moody objected. (Doc. 40). Pursuant to 28 U.S.C.
§ 636(b)(1), the Court has considered Moody’s objection and has made a de novo
determination of the portions of the Recommendation subject to Moody’s objection.
On March 14, 2016, Defendants Eutsey, Miller, Piercy, and Whiters-Hughes
moved for the dismissal of Moody’s complaint, in part, because he listed only one of six
prior lawsuits, “[o]ther than an appeal of [his] conviction or sentence, and other than any
habeas action,” “while incarcerated or detained.” (Doc. 23-1 at 14-15; see also Doc. 1 at
2).1 On June 13, 2016, Defendant Chatman adopted this argument in his motion to
dismiss. (Doc. 34 at 7). On March 14, 2016 and June 14, 2016, the court informed
Moody that: “Failure of the Plaintiff herein to respond to and rebut the legal arguments set
forth in Defendants’ brief may result in said statements being accepted as uncontested
and correct. The Court could grant judgment to Defendants and there would be no trial or
further proceedings.” (Docs. 25 at 2; 35 at 2).
Nearly five months passed after the Court first informed Moody of his need to
respond, and on August 9, 2016, the Magistrate Judge, noting Moody’s failure to respond

1

Question 7 of the form § 1983 complaint (captioned as the “Questionnaire for the Prisoners Proceeding
Pro Se under 42 U.S.C. § 1983”) required the Plaintiff to list such lawsuits, explicitly stating that “if you have
filed more than one lawsuit, list other lawsuits on a separate sheet of paper, giving the same information for
each.” (Doc. 1 at 2).

to the motions to dismiss, entered the subject Recommendation that the case be
dismissed because of Moody’s abuse of process. (Doc. 39 at 2-5).
On August 26, 2016, Plaintiff objected to the Recommendation, arguing that he did
not knowingly file false contentions. (Doc. 40 at 3-4). Moody notes that he
acknowledged one prior lawsuit and argues that his poor mental health and his lack of
knowledge of the case numbers of his other lawsuits should excuse his failure to list the
other lawsuits. (Id.). Without explanation, Moody states: “Plaintiff . . . has no way of
knowing if court (sic) get (sic) motions letters on time or even from plaintiff,” and makes
reference to his limited access to legal materials. (Id.).
Moody offers no reasoned explanation why he waited five months to raise these
arguments in response to the Defendants’ motions, despite the Court’s orders notifying
him of the consequences of his failure to respond. Moody appears to have received and
simply ignored the Court’s notices.2 Though he comments about general difficulties
attendant to prosecuting a lawsuit from a prison cell, Moody does not assert that he did
not timely receive the Court’s notices or was unable to file a response to the Defendants’
motions to dismiss. Moody did not complain that he was prevented from responding.
Similarly, Moody did not request additional time to respond.
Despite his contentions regarding his poor mental health, Moody offers no
indication that he could not have at least filed a response comparable to his objection
(which, notably, Moody drafted without difficulty within 48 hours of receiving the
Recommendation). To the contrary, Moody appears to have been mentally capable
throughout the relevant period, as he drafted and filed other materials. (See, e.g., Docs.
27 (letter dated March 17, 2016); 31 (motion to dismiss Crystal Hughes Whiters dated
April 19, 2016); 36 (motion to amend complaint dated July 10, 2016)).
As a point of clarification, the Defendants’ motions and the Magistrate Judge’s
Recommendation may overstate the number of prior cases that Moody failed to list.
(Doc. 23-1 at 4-5; 39 at 3). Two of the five cited cases—Moody v. Shoults, 5:15-cv-325

2

Moody seems to be receiving materials sent by the Court; he signed his objection August 10, 2016, just
two days after the Court’s entry of the Recommendation. (Compare Doc. 40 at 4 with Doc. 39).

-2-

(M.D. Ga.) (docketed as filed August 24, 2015), and Moody v. Martin, 5:15-cv-341 (M.D.
Ga.) (docketed as filed September 1, 2015)—though appearing to have been filed just
weeks before this action, and thus egregious instances of misconduct, may be something
less. The complaints were signed by Moody the same day: July 15, 2015. (Compare
Doc. 1 at 6, with Moody v. Shoults, 5:15-cv-325, Doc. 1 at 6 and Moody v. Martin, 5:15cv-341, Doc. 1 at 6). It seems that Moody may have simultaneously delivered the
complaints into the prison mail. (See Moody v. Shoults, 5:15-cv-325, Doc. 1-2 (envelope
with “2-of-3” written on it); Doc. 5 (letter stating “I sented (sic) in 3 letters 1983 forms. Im
(sic) worry (sic) that this prison didn’t mail them to your court I need a contact person so I
can send the rest of my suits”).
Regardless, however, Moody clearly failed to list three prior actions filed in the
Northern District of Georgia—Moody v. Porshe, 1:08-cv-1555 (N.D. Ga.); Moody v.
Simon, 1:09-cv-2679 (N.D. Ga.); and Moody v. Welch, 1:14-cv-798 (N.D. Ga.). Further,
Moody failed to respond to the Defendants’ motions to dismiss. Accordingly, his belated
and unsupported assertion in his objection that he did not knowingly falsify his complaint
is not, by itself, sufficient to avoid dismissal at this stage of the proceeding. Cf. Williams
v. McNeil, 557 F.3d 1287, 1292 (11th Cir. 2009) (“[A] district court has discretion to
decline to consider a party’s argument when that argument was not first presented to the
magistrate judge.”).
The Court has reviewed the Recommendation and, subject to the above
clarification, adopts the findings, conclusions, and recommendations of the Magistrate
Judge. The Recommendation, as clarified, is ADOPTED and made the order of this
Court. Accordingly, the Defendants’ motions to dismiss are GRANTED, Moody’s
Complaint is DISMISSED without prejudice and Plaintiff’s motion to dismiss (Doc. 31) and
motion to amend (Doc. 36) are DENIED as moot.
SO ORDERED, this 3rd day of November, 2016.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
-3-