JACKSON v. MCLAUGHLIN et al
ORDER ADOPTING 18 Report and Recommendations and DENYING 13 Motion to Dismiss. Plaintiff's 20 motion for reconsideration is DENIED. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 12/22/2016. (tlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
Lieutenant DOMENICO DEMUNDO,
CIVIL ACTION NO. 5:15-CV-364(MTT)
This matter is before the Court on United States Magistrate Judge Charles H.
Weigle’s Report and Recommendation. Doc. 18. The Defendant moved to dismiss for
failure to state a claim (Doc. 13), and the Magistrate Judge recommends denying the
motion. The Defendant has objected to the Recommendation. Doc. 19. Pursuant to 28
U.S.C. § 636(b)(1), the Court has considered the Defendant’s objections and made a de
novo determination of the portions of the Recommendation to which he objects. As
discussed below, the Recommendation is ADOPTED and made the Order of this Court.
Accordingly, the Defendant’s motion to dismiss is DENIED. Also, the Plaintiff untimely
responded to the Defendant’s objection, raising an argument to reinstate previously
dismissed Defendants. The Court construes that portion of the Plaintiff’s filing as a
motion to reconsider, and the motion is DENIED.
The Recommendation does not address the Defendant’s argument that he is
entitled to qualified immunity, and the Defendant objects. Doc. 19 at 3. A government
official acting within the scope of his duties is entitled to qualified immunity unless (1)
the plaintiff alleges facts that constitute a violation of a constitutional right by the official
and (2) the constitutional right was clearly established at the time of the alleged
violation. Pearson v. Callahan, 555 U.S. 223, 232 (2009) (quoting Saucier v. Katz, 533
U.S. 194, 201 (2001)). The Defendant argues that his actions as stated in the Plaintiff’s
complaint were not unconstitutional, and the constitutional right was not clearly
established at the time the alleged violation occurred. Id. at 3-4.
For the reasons discussed in the Recommendation, reviewed de novo and
adopted by the Court, the allegations state a claim for violation of the Plaintiff’s rights
under the Due Process Clause of the Fourteenth Amendment. Doc. 18 at 2-6. Further,
the right was clearly established in the specific context of this case when the alleged
violation occurred. Imposing an “atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life” constitutes a violation of the inmate’s Due
Process rights. Sandin v. Conner, 515 U.S. 472, 483-84 (1995). The Supreme Court in
Wilkinson v. Austin held that factors such as restrictive conditions, severe limitations on
human contact, and indefinite administrative segregation created a Due Process
interest. 545 U.S. 209, 223-24 (2005). As discussed in the Recommendation, the
Plaintiff alleges the same kinds of deprivation. Doc. 18 at 4. Accordingly, the right was
clearly established at the time of the alleged violation, and the Defendant is not entitled
to qualified immunity at this stage.
MOTION TO RECONSIDER
The Plaintiff’s handwritten filing is difficult to read, and his reasoning is difficult to
follow. As a response to the Defendant’s objection, the Plaintiff’s filing is untimely.
Compare Doc. 20 (Plaintiff’s Response, filed October 28, 2016) with Doc. 19
(Defendant’s Objection, filed August 22, 2016). Accordingly, the Court does not
consider the response in its analysis of the Defendant’s objection. But the Plaintiff also
writes (in the Court’s best attempt to read his handwriting):
There is no way this defendant [Demundo] didnt know he
was violating this Plaintiff rights. Poolaw v Marcantel 565
F3d 735. If thats the case the other defendants who were
dismissed didnt do there jobs as far as training goes within
the D.O.C. or L.O.P., S.O.P. rule and regulation of the
G.D.C. prison system, Warden McLaughlin should not have
been dismissed in his qualified immunity due to his capacties
he plays a part of color of law of making those rules in his
staff briefings, memos, and sit downs with his staffs, case’s
site has been get in this brief as his cloak. Plaintiff didnt feel
it was necessary as long as the law was stated, Now since
that has been brought to Plaintiff Attention it is apart of this
report which is extra Objections on why defendants are not
entitled and Should have not been dismissed for individual
capacites, Defendant Warden G. McLaughlen, then Comm
Brian Owens and or Comm Homer Bryson, Due to the
case’s Plaintiff has sited in this agreed Objection which
Plaintiff has agreed with Magistrate Judge did not erred in
concluding that Defendant is not entitled to qualified
immunity. But should also do the same with the other
defendants who was and allow to be dismissed to go under
the same claims as Lt Demundo if not arms of the state for
Eleventh Amendment purposes then why was Warden
McLaughlin and Comm Brian Owens dismissed when the
Play the part of this claims as color of law
Doc 20 at 2-3 (errors and punctuation in original). The Court construes this portion of
the response as a motion for reconsideration of the Court’s dismissal without prejudice
of the Plaintiff’s claims against other Defendants. Doc. 16. Pursuant to Local Rule 7.6,
“Motions for Reconsideration shall not be filed as a matter of routine practice.” M.D. Ga.
L.R. 7.6. “Reconsideration is appropriate only if the movant demonstrates (1) that there
has been an intervening change in the law, (2) that new evidence has been discovered
which was not previously available to the parties in the exercise of due diligence, or (3)
that the court made a clear error of law.” Bingham v. Nelson, 2010 WL 339806, at *1
(M.D. Ga.) (internal quotation marks and citation omitted). “In order to demonstrate
clear error, the party moving for reconsideration must do more than simply restate his
prior arguments, and any arguments which the party inadvertently failed to raise earlier
are deemed waived.” McCoy v. Macon Water Auth., 966 F. Supp. 1209, 1223 (M.D.
The Plaintiff appears to argue that the Court should not have dismissed his
claims against the other Defendants because qualified immunity does not apply for the
same reasons it should not apply to the remaining Defendant. If so, the Plaintiff
misstates the reasons for those dismissals. The Court did not dismiss the other
Defendants because of qualified immunity; rather, the Court agreed with the Magistrate
Judge’s Recommendation to find that the Plaintiff failed to state a claim as to those
Defendants. Doc. 16 at 1; Doc. 8 at 5-9. Whatever his intended argument, the Plaintiff
does not point to, and the Court does not find, any intervening change in law, new
evidence not previously available to the parties, or clear error in the Court’s prior Order.
For the reasons discussed above, the Court ADOPTS the Recommendation and
makes it the Order of this Court, and the Defendant’s motion to dismiss (Doc. 13) is
DENIED. Also, the Plaintiff’s motion for reconsideration (Doc. 20) is DENIED.
SO ORDERED, this 22nd day of December, 2016.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
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