MOSS v. KNOX et al
ORDER ADOPTNG 57 Report and Recommendations; DENYING 72 , 77 , 80 , and 81 Motion to Amend/Correct. The Plaintiff's denial of dental care claim against Defendant Prescott and his malicious prosecuti on claims against Defendants Blanks and Henderson regarding the illegal weapons and child exploitation charges are allowed to proceed for further factual development. The Plaintiff's remaining claims against Defendants Blanks, Henderson, and Prescott as well as his claims against all other defendants are DISMISSED without prejudice. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 4/20/2017. (tlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
JEFFREY EDWARD MOSS,
ALLEN RUSTY KNOX, et al.,
CIVIL ACTION NO. 5:16-CV-10 (MTT)
Before the Court is the Recommendation (Doc. 57) of United States Magistrate
Judge Stephen Hyles concerning Plaintiff Jeffrey Edward Moss’s Complaint (Doc. 1).
After screening the Plaintiff’s complaint pursuant to 28 U.S.C. § 1915A, the Magistrate
Judge recommends the Plaintiff’s malicious prosecution claims against Defendants
Adam Blanks and Sergeant Allen Henderson regarding the illegal weapons and child
exploitation charges be allowed to proceed. Doc. 57 at 8. The Magistrate Judge also
recommends the claim against Defendant Carolyn Prescott (“Nurse Carolyn”) regarding
denial of dental care be allowed to proceed. Id. at 19-20. The Magistrate Judge
recommends that the Plaintiff’s remaining claims be dismissed. The Plaintiff has
objected to all the findings in the Recommendation. Doc. 71. Thus, the Court has
performed a de novo review of those findings and adopts the findings, conclusions, and
recommendations of the Magistrate Judge.
In his Objection, the Plaintiff attempts to state new allegations concerning his
deliberate indifference to medical needs claim by clarifying those claims were against
Dr. Stanley J Hickman. Id. at 8; 17; 36. The Court reads this as a motion to amend,
which the Court DENIES. Although leave to amend should be freely granted, “denial of
leave to amend is justified by futility when the complaint as amended is still subject to
dismissal.” Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1263 (11th Cir. 2004)
(quotation marks and citation omitted). Here, the Plaintiff’s additional allegations
regarding his denial of medical treatment claims are futile because he fails to
specifically allege the nature and severity of his medical needs as well as how Dr.
Hickman failed to address those needs. See Farrow v. West, 320 F.3d 1235, 12431248 (11th Cir. 2003). Thus, even considering the additional allegations, the Plaintiff
fails to state a claim and, therefore, the Court adopts the Magistrate Judge’s findings as
to this claim. The remainder of the Plaintiff’s objections are duplicative of the
allegations contained in his previous filings, which the Magistrate Judge considered in
making the findings that the Court now adopts.
Accordingly, the Plaintiff’s denial of dental care claim against Defendant Prescott
and his malicious prosecution claims against Defendants Blanks and Henderson
regarding the illegal weapons and child exploitation charges are allowed to proceed for
further factual development. The Plaintiff’s remaining claims against Defendants
Blanks, Henderson, and Prescott as well as his claims against all other defendants are
DISMISSED without prejudice.
MOTION TO APPOINT COUNSEL
Additionally, the Plaintiff appears to object to the Magistrate Judge’s denial of his
Motions to Appoint Counsel (Docs. 49, 52), and again moves for appointment of
counsel. Doc. 71 at 44. After careful consideration, the Court finds that appointment of
counsel is unwarranted because the issues are neither factually nor legally complex.
See Wahl v. McIver, 773 F.2d 1169, 1174 (11th Cir. 1985) (“Appointment of counsel in a
civil case is not a constitutional right.”). Thus, the Court adopts the Magistrate Judge’s
finding and DENIES the Motion to Appoint Counsel.
PENDING MOTIONS TO AMEND
After objecting to the Recommendation, the Plaintiff filed three motions to amend
or add documents in an apparent attempt to cure the failures in his complaint.1 Docs.
72; 77; 80. As stated, “denial of leave to amend is justified by futility when the complaint
as amended is still subject to dismissal.” Hall, 367 F.3d at1263 (quotation marks and
citation omitted). The allegations in the pending motions to amend are duplicative of
those contained in the Plaintiff’s previous filings and fail to state a claim for relief.
Accordingly, those motions to amend (Docs. 72; 77; 80) are DENIED. Additionally, the
Plaintiff has filed another Motion to Amend (Doc. 81) in response to the Defendants’
Motion to Dismiss (Doc. 73). Like the Plaintiff’s previous motions to amend, this motion
is duplicative of his previous allegations and fails to state a claim for relief. Accordingly,
amendment would be futile and therefore that motion (Doc. 81) is also DENIED.
SO ORDERED, this 20th day of April, 2017.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
Prior to the Recommendation, the Magistrate Judge granted three motions to amend (Docs. 38, 39, 42)
and the Plaintiff subsequently filed numerous pleadings purporting to amend or supplement his
allegations (Docs. 44, 45, 46, 48, 50, 53, 54, 55), which the Magistrate Judge considered.
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