MAJOR v. TOOLE et al

Filing 67

ORDER denying 64 MOTION to Appoint Counsel and 65 MOTION to Object. ORDER granting in part 63 MOTION to Amend/Correct. REPORT AND RECOMMENDA TION recommending granting 56 MOTION to Dismiss Defendants Shumake & Davis for Failure to Exhaust Administrative Remedies and 57 MOTION to Dismiss Party. REPORT AND RECOMMENDATION recommending denying 66 MOTION for Court to Take Action. Ordered by US MAGISTRATE JUDGE STEPHEN HYLES on 2/27/2017. (efw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
TROY MAJOR,

:
:
Plaintiff,
:
VS.
:
:
Warden ROBERT TOOLE, et al.,
:
:
Defendants.
:
________________________________ :

NO. 5:15-CV-483-MTT-MSH

REPORT AND RECOMMENDATION
Presently pending before the Court is Defendants Davis and Shumake’s motion to
dismiss for failure to exhaust (ECF No. 56), and Defendants’ motion to have the claims
against Defendants Williams, Chatman, McCloud, Bishop, Toole, Paul, Powell, Logan,
Bryson, Upton, Jacobs, DeLoach, and Dean severed from this action for misjoinder (ECF
No. 57). Plaintiff failed to file a response to either motion, and the time in which to do so
elapsed. Also pending before the Court are Plaintiff’s motion to amend (ECF No. 63),
motion to appoint counsel (ECF No. 64), motion to object (ECF No. 65), and motion for
preliminary injunction (ECF No. 66).

For the reasons discussed herein, it is

recommended that Defendants Davis and Shumake’s motion be granted, Defendants’
motion to dismiss for misjoinder be granted, and Plaintiff’s motion for preliminary
injunction be denied. Plaintiff’s motion to appoint counsel, and motion to object are
denied. Plaintiff’s motion to amend is granted in part.

BACKGROUND
Plaintiff’s claims arise out of his incarceration at the Georgia State Prison (“GSP”)
in Reidsville, Georgia and his subsequent transfer to the Georgia Diagnostic and
Classification Prison (“GDCP”) in Jackson, Georgia. Compl. 9, 11, ECF No. 1.

After

a preliminary review, Plaintiff’s sexual assault and retaliation claims against Defendant
Johnson, his excessive force claims against Defendants Davis and Shumake, his failure to
intervene claims against Defendants Deloach and Smith, and his claims regarding his
Tier III classification were allowed to proceed for further factual development. Order 12, Nov. 29, 2016, ECF No. 62. Defendants filed motions to dismiss on August 12, 2016
(ECF Nos. 56, 57) and Plaintiff did not respond. These are ripe for review. Plaintiff also
filed several motions in January 2017 (ECF Nos. 63, 64, 65, 66), which the Court
considers below.
DISCUSSION
I.

Plaintiff’s Motions
A.

Motion to Amend

Plaintiff filed a motion for leave to file an amended complaint on January 8, 2017
(ECF No. 63). Pursuant to Federal Rule of Civil Procedure 15(a)(2), when the time for
amendment as a matter of course has passed, “a party may amend its pleading only with
the opposing party's written consent or the court's leave.” Fed. R. Civ. P. 15(a)(2). Rule
15 instructs the Court to “freely give leave when justice so requires.” Id. However, leave
to amend is “by no means automatic.” Layfield v. Bill Heard Chevrolet Co., 607 F.2d
1097, 1099 (5th Cir. 1979). “[A] motion to amend may be denied on numerous grounds,
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such as undue delay, undue prejudice to the defendants, and futility of the amendment.”
Carruthers v. BSA Adver., Inc., 357 F.3d 1213, 1218 (11th Cir.2004) (internal citation
and quotation marks omitted). Where a party demonstrates unjustifiable delay in moving
to amend, the court may deny the party’s motion. Wright v. Waller, No. 5:10-CV-254MTT, 2011 WL 3665118, at *1 (M.D. Ga. Aug. 22, 2011) (denying Plaintiff’s motion to
for leave where the amended complaint was filed a year after the original complaint and
seven months after defendant’s motion to dismiss, and plaintiff did not attempt to justify
the delay nor suggest the new claims were unknown at the time the original complaint
was filed).
In the instant case, Plaintiff filed his motion to amend over a year after he filed his
original complaint and almost five months after Defendants filed their motion to dismiss.
He provides no explanation for the delay. Plaintiff’s Proposed Amended Complaint
appears to be, in part, an attempt to respond to the arguments of Defendants Davis and
Shumake’s motion to dismiss.

To the extent that Plaintiff’s Proposed Amended

Complaint more fully develops the record as to this issue of exhaustion, it is granted and
the Court considers the facts and assertions therein. For the reasons set forth above, the
Plaintiff's motion for leave is denied as to the remained of his Proposed Amended
Complaint.
B.

Motion to Appoint Counsel

Plaintiff requests that legal counsel be appointed for him in this case (ECF No.
64). Pursuant to 28 U.S.C. § 1915(e)(1), the district court “may request an attorney to
represent any person unable to afford counsel.”
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There is, however, “no absolute

constitutional right to the appointment of counsel” in a § 1983 lawsuit. Poole v. Lambert,
819 F.2d 1025, 1028 (11th Cir. 1987). Appointment of counsel is a privilege that is
justified only by exceptional circumstances. Lopez v. Reyes, 692 F.2d 15, 17 (5th Cir.
1982).
Here, Plaintiff filed a § 1983 pro se complaint on a standard form and attached a
jury demand (ECF No. 1). The facts stated in Plaintiff’s Complaint are not complicated,
and the law governing Plaintiff’s claims is neither novel nor complex. The Complaint
and Amended Complaint demonstrate that Plaintiff is able to articulate his claims and
that he has a basic understanding of the law. The undersigned thus finds that the essential
facts and legal doctrines in this case are ascertainable by Plaintiff without the assistance
of an attorney—despite his inability to afford counsel, limited access to the law library,
and inability to find private counsel. See Mot. for the Appointment of Counsel 1, ECF
No. 64 (referring to and incorporating Mot. for the Appointment of Counsel 1-2, ECF No.
9). Plaintiff’s Motion for the Appointment of Counsel (ECF No. 64) is accordingly
denied.
C.

Motion to Object

On January 8, 2017, Plaintiff filed a “Motion to Object” (ECF No. 65), objecting
to U.S. District Court Judge Treadwell’s Order at ECF No. 62. Mot. to Object 1.
Plaintiff adopts and incorporates the arguments set forth in his objection (ECF No. 55) to
the Magistrate’s Report and Recommendation (ECF No. 18). Id. Plaintiff avers that he
must assert these arguments “in order to preserve them.” Objections are only proper to a

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magistrate judge’s report and recommendation, not to a District Court’s orders.1 28
U.S.C. § 636(b)(1). Plaintiff’s motion to object is therefore denied.
D.

Motion for Injunctive Relief

On January 15, 2017, Plaintiff filed “A Letter of Concern an[d] Complaint” (ECF
No. 66). The Court construes this document as a motion for injunctive relief. Plaintiff
seeks to have the Court “make Defendants Powell, Young uphold they oath, duties” and
“take immediate[] action, stop all retaliation, harassment[.]” Essentially, Plaintiff wants
the prison officials to obey the law. Such injunctive relief is impermissible. See, e.g.,
Elend v. Basham, 471 F.3d 1199, 1209 (11th Cir. 2006) (“It is well-established in this
circuit that an injunction demanding that a party do nothing more specific than “obey the
law” is impermissible.”). It is consequently recommended that Plaintiff’s motion for
injunctive relief (ECF No. 66) be denied.
II.

Defendants Davis and Shumake’s Motion to Dismiss for Failure to Exhaust
Defendants Davis and Shumake move to dismiss, arguing that Plaintiff failed to

exhaust. Defs.’ Mot. to Dismiss 4, ECF No. 56. Plaintiff did not respond, except to
further develop the record in his motion for leave to amend. Title 42, United States Code
section 1997e(a) provides that “[n]o action shall be brought with respect to prison
conditions under section 1983 of this title . . . by a prisoner confined in any jail, prison, or
other correctional facility until such administrative remedies as are available are
exhausted.” “[W]hen a state provides a grievance procedure for its prisoners, as Georgia
does here, an inmate alleging harm suffered from prison conditions must file a grievance

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District Court orders are, however, appealable to the extent that they are final orders.
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and exhaust the remedies available under that procedure before pursuing a § 1983
lawsuit.” Johnson v. Meadows, 418 F.3d 1152, 1156 (11th Cir. 2005) (internal quotation
marks and citation omitted). The argument that a plaintiff has failed to satisfy section
1997e(a) is properly raised in a motion to dismiss. Bryant v. Rich, 530 F.3d 1368, 1375
(11th Cir. 2008) (“[E]xhaustion should be decided on a Rule 12(b) motion to dismiss[.]”).
Furthermore, since dismissal for failure to exhaust is not an adjudication on the merits,
the Court can resolve factual disputes using evidence from outside the pleadings. Id. at
1376.
“[D]eciding a motion to dismiss for failure to exhaust administrative remedies is a
two-step process.” Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008). “First, the
court looks to the factual allegations in the defendant’s motion to dismiss and those in the
plaintiff’s response, and if they conflict, takes the plaintiff’s versions of the facts as true.”
Id. If, taking plaintiff’s facts as being true, the defendant is entitled to dismissal for
failure to exhaust, then the complaint should be dismissed. Id. “If the complaint is not
subject to dismissal at the first step . . . , the court then proceeds to make specific findings
in order to resolve the disputed factual issues related to exhaustion.” Id. The defendant
bears the burden of proof during this second step. Id.
Defendants Davis and Shumake move to dismiss for lack of exhaustion claiming
that the Georgia Department of Corrections (GDOC) has a grievance procedure which
applies to all inmates, but that Plaintiff failed to utilize this procedure regarding the claim
against them. Defs.’ Mot. to Dismiss 3-6. Plaintiff did not file a response to Defendants’
motion to dismiss.
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Defendants provided the GDOC’s Standard Operating Procedures regarding
grievances. Footman Aff. Attach. 1, ECF No 56-2. The GDOC grievance procedure
consists of two steps: (1) the Original Grievance and (2) the Central Office Appeal. Id. at
7. An inmate must file an Original Grievance no later than ten (10) calendar days from
the date the offender knew or should have known of the facts giving rise to the grievance.
Id.
Plaintiff averred—without specific detail—in his original Complaint that he
presented his complaints as a grievance. Compl. 3. Plaintiff provided no grievance
number, grievance receipt, date, or explanation of the specific claims he grieved. See
generally Compl. In Plaintiff’s Proposed Amended Complaint, Plaintiff avers for the
first time that “state officials refused to process grievance, grievance appeal, and
written/declarations[.]” Proposed Am. Compl. 1, ECF No. 63-1. Plaintiff also states that
he “verbally informed Defendant DeLoach and Smith of assault/excessive force and
requested emergency medical treatment” and that his wife “emailed/call Commissioner’s
office on 6-18-14 informing and complaining about excessive force[.]” Id. Plaintiff
states that the emails he attached to his Proposed Amended Complaint demonstrate that
he filed grievances. Id. 1-2. Because at the first stage of the exhaustion analysis the
Court must take Plaintiff’s version of the facts as being true, Plaintiff’s Complaint cannot
be dismissed for lack of exhaustion at this first step. Turner, 541 F.3d at 1082; see also
Dollar v. Coweta Cty. Sheriff Office, 446 F. App’x 248, 251-52 (11th Cir. 2011).
Since the Complaint was not dismissed at the first step, the Court can make factual
findings relating to exhaustion. A defendant bears the burden of establishing a lack of
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exhaustion at the second step of the inquiry. Turner, 541 F.3d at 1082-83. The Court
makes the following factual findings and determines that Defendants have met their
burden regarding the Plaintiff’s claims against Defendants Davis and Shumake.
The alleged excessive force incident occurred on May 14, 2014. Compl. 10. On
the same day, Plaintiff was transferred to Georgia Diagnostic and Classification State
Prison. Defendants provided Plaintiff’s grievance history, which does show that Plaintiff
filed a grievance on May 21, 2014—within the ten-day window to file a grievance after a
May 14, 2014 incident. Footman Aff. Attach. 2, ECF No. 56-3. However, Plaintiff only
grieves the confiscation and withholding of his personal property and legal mail.

Defs.’

Footman Aff. Attach. 3, ECF No. 56-4. Plaintiff does not mention any allegations of
excessive force. See id. This is the only filed grievance—on any subject—within two
weeks of the alleged excessive force. See Footman Aff. Attach. 2, ECF No. 56-3. The
next filed grievance on June 11, 2014 relates to a policy/procedural challenge. Id.
Plaintiff was able to file and exhaust at least six grievances between the date of the
alleged excessive force incident and the end of 2014—none of which relate to excessive
force. His cursory, non-specific assertions that the grievance process was unavailable to
him are therefore unavailing.
Plaintiff’s assertions that his wife’s emails exhausted his administrative remedies
are likewise unpersuasive. The only email attached to Plaintiff’s Proposed Amended
Complaint relating to any allegation of excessive force is dated July 24, 2012 (almost two
years before the alleged incident) and concerns a “Lt. McFarland,” who is not a party to
this action.

Proposed Am. Compl. Ex. “E-mails to Ombudsman” at 2, ECF 63-3.
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Moreover, even if the email addressed the incident complained of in this action, an email
would not fulfill the exhaustion requirement. See, e.g., Whatley v. Warden, Ware State
Prison, 802 F.3d 1205, 1208 (11th Cir. 2015) (quoting Jones v. Bock, 549 U.S. 199, 218
(2007)) (“To properly exhaust, a prisoner must ‘[c]ompl[y] with prison grievance
procedures.’”)
Plaintiff had at least four opportunities—his Complaint (ECF No. 1), Supplement
to his Complaint (ECF No. 15), Proposed Amended Complaint (ECF No. 63), and the
opportunity to respond to Defendants’ motion to dismiss—to present evidence that he
exhausted his claims against Defendants Davis and Shumake.

This Court finds no

evidence that those claims were ever grieved. It is thus recommended that Defendants
Davis and Shumake’s motion to dismiss for failure to exhaust be granted.
III.

Defendants’ Motion to Sever Parties
Defendants also move to sever Defendants Williams, Chatman, McCloud, Bishop,

Toole, Paul, Powell, Logan, Bryson, Upton, Jacobs, DeLoach, and Dean from this action,
asserting misjoinder. Defs.’ Mot. to Drop Parties 1-3, ECF No. 57. Plaintiff similarly
failed to respond to this motion.
Federal Rule of Civil Procedure 18 authorizes joinder of claims and Rule 20
contemplates permissive joinder of defendants. A “plaintiff may join multiple defendants
in a single action only if the right to relief asserted against them arises ‘out of the same
transaction, occurrence, or series of transactions or occurrences’ and if ‘any question of
law or fact common to all defendants will arise in the action.’ Fed. R. Civ. P. 20(a). “[A]
claim arises out of the same transaction or occurrence if there is a logical relationship
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between the claims.” Constr. Aggregates, Ltd. v. Forest Commodities Corp., 147 F.3d
1334, 1337 n.6 (11th Cir. 1998).
“[A] § 1983 plaintiff may set forth only related claims in one civil rights
complaint. He may not join unrelated claims and 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.’” Bert v. Dep’t
of Corr., 5:16-cv-160-MTT-MSH, 2016 WL 6208317, at *4 (M. D. Ga. Aug. 25, 2016)
(quoting Fed. R. Civ. P. 20(a)(2)(A)-(B)). Rule 21 allows the court to drop a party or
sever any claim against a party where there is misjoinder. Fed. R. Civ. P. 21; see also
Randall v. Jackson Cty., 3:16-cv-147-CDL, 2016 WL 6395901, at *1 (M. D. Ga, Oct. 26,
2016) (“Based on the Court's review, Counts One, Two, and Three assert three separate
substantive claims based on the alleged conduct of three separate groups of Defendants. It
is not clear from the face of the Complaint how these claims and Defendants are properly
joined under Federal Rules of Civil Procedure 18 and 20(2). Thus, it appears that the
claims should be severed under Rule 21.”)
Plaintiff’s claims in this case are: sexual assault and retaliation claims against
Defendant Johnson, excessive force claims against Defendants Davis and Shumake,
failure to intervene claims against Defendants Deloach and Smith, and claims regarding
his Tier III classification. Plaintiff’s claims against Defendant Johnson are related to
allegations of sexual assault on February 7, 2014 at Georgia State Prision and alleged
subsequent retaliation by Defendant Johnson. Compl. 9. In his pleadings, Plaintiff does
not allege that any of the other remaining defendants were involved the actions relating to
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his sexual assault claim. Id. Rather, the other remaining defendants are parties to this
lawsuit on other, unrelated claims connected with to Plaintiff’s assignment to segregation
units.

Plaintiff’s claims against Defendant Johnson do not arise out of the same

transaction, occurrence, or series of transactions or occurrences with the other defendants.
There is also no question of law or fact common to Johnson and the other remaining
defendants. This Court thus recommends Defendants motion to sever parties be granted.
This dismissal should be without prejudice, affording Plaintiff an opportunity to refile.2
Plaintiff’s claims against Defendants Williams, Chatman, McCloud, Bishop, Toole, Paul,
Powell, Logan, Bryson, Upton, Jacobs, DeLoach, and Dean should be dismissed without
prejudice.
CONCLUSION
For the reasons explained above, it is recommended that Defendants Davis and
Shumake’s motion be granted, Defendants’ motion to dismiss for misjoinder be granted,
and Plaintiff’s motion for preliminary injunction be denied. Plaintiff’s motion to appoint
counsel, and motion to object are denied. Plaintiff’s motion to amend is granted in part.
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.
2

The Court notes that Plaintiffs remaining allegations are characterized by Plaintiff as ongoing
in nature. The claims relate to Plaintiff’s continued confinement—and the conditions of that
confinement—in Tier II/SMU. Thus they would not be barred by any applicable statute of
limitation.
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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 RECOMMENDED, this 27th day of February, 2017.
S/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE

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