LEARY v. THE GEO GROUP INC et al

Filing 24

ORDER ADOPTING in part 8 Report and Recommendations; DENYING 14 Motion to Appoint Counsel; and GRANTING 15 Motion to Amend/Correct. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 1/22/2018. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
VICTOR MACKEVIN LEARY,
Plaintiff,
v.
THE GEO GROUP, INC., et al.,

Defendants.

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CIVIL ACTION NO. 5:17-cv-22 (MTT)

ORDER
Before the Court is the recommendation of United States Magistrate Judge
Charles H. Weigle (Doc. 8) and Plaintiff Victor Mackevin Leary’s motions to amend
(Doc. 15) and to appoint counsel (Doc. 14). For the following reasons, the
recommendation is ADOPTED in part and REJECTED in part, Leary’s motion to
amend is GRANTED, and Leary’s motion to appoint counsel is DENIED.
I. RECOMMENDATION AND LEARY’S MOTION TO AMEND
The Magistrate Judge recommends that Leary’s First Amendment retaliation
claim against Defendants Frederick J. Head, Ronald R. Warren, and Laura Fletcher; his
Eighth Amendment claim based on administrative segregation against all Defendants;
and all of his claims against Defendant The Geo Group, Inc. should be dismissed
without prejudice. Doc. 8 at 1-2. Meanwhile, the Magistrate Judge recommends that
Leary’s Eighth Amendment conditions of confinement claim against Defendants Head,
Douglas West, Warren, and Fletcher and his First Amendment retaliation claims against
Defendants West and Tammy Bailey should be allowed to proceed for further factual

development. Id. at 2. Leary, who is proceeding pro se, did not object to the
Recommendation but instead moved to amend his complaint. Doc. 15. But the statute
of limitations appears to have run on all of Leary’s claims that the Magistrate Judge
recommends be dismissed; therefore, dismissal of those claims would be tantamount to
dismissal with prejudice, and thus Leary should be given an opportunity to amend his
claims. Carter v. HSBC Mortg. Servs., Inc., 622 F. App'x 783, 786 (11th Cir. 2015) (“A
pro se plaintiff, however, ‘must be given at least one chance to amend the complaint
before the district court dismisses the action with prejudice,’ at least where a more
carefully drafted complaint might state a claim.” (quoting Bank v. Pitt, 928 F.2d 1108,
1112 (11th Cir.1991), overruled in part by Wagner v. Daewoo Heavy Indus. Am. Corp.,
314 F.3d 541, 542 (11th Cir. 2002) (en banc ))). Accordingly, the Court GRANTS the
Plaintiff’s motion to amend (Doc. 15). Leary is ORDERED to amend within 21 days his
First Amendment retaliation claim against Defendants Head, Warren, and Fletcher, his
Eighth Amendment claim based on administrative segregation against all Defendants;
and all of his claims against Defendant The Geo Group, Inc.—those claims that the
Magistrate Judge recommends be dismissed.1 Accordingly, to the extent it
recommends dismissing Leary’s claims, the Recommendation is REJECTED. But to
the extent it recommends that Leary’s Eighth Amendment conditions of confinement
claim against Defendants Head, West, Warren, and Fletcher and his First Amendment
retaliation claims against Defendants West and Bailey should proceed for further factual
development, the Recommendation is ADOPTED and made the order of this Court.

1

The Court notes that usually a plaintiff would be required to file a recast complaint addressing all of his
claims. However, based on the circumstances, the Court finds it appropriate to order Leary to only file an
amended complaint as to those claims that the Magistrate Judge recommends be dismissed.

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II. LEARY’S MOTION TO APPOINT COUNSEL
Additionally, Leary moves for the appointment of counsel. Doc. 14.
“Appointment of counsel in a civil case is not a constitutional right.” Wahl v. McIver, 773
F.2d 1169, 1174 (11th Cir.1985); see also Hunter v. Dept. of Air Force Agency, 846
F.2d 1314, 1317 (11th Cir.1988) (stating that decision to appoint counsel is within
discretion of district court). Rather, “it is a privilege that is justified only by exceptional
circumstances.” Wahl, 773 F.2d at 1174. There are no such circumstances here.
Accordingly, Leary’s motion to appoint counsel (Doc. 14) is DENIED.
III. CONCLUSION
In summary, the Magistrate Judge’s recommendation is ADOPTED in part and
REJECTED in part. Leary’s Eighth Amendment conditions of confinement claim
against Defendants Head, West, Warren, and Fletcher and his First Amendment
retaliation claims against Defendants West and Bailey are allowed to proceed for further
factual development. Leary’s motion to amend (Doc. 15) is GRANTED and Leary is
ORDERED to amend within 21 days his First Amendment retaliation claim against
Defendants Head, Warren, and Fletcher; his Eighth Amendment claim based on
administrative segregation against all Defendants; and all of his claims against
Defendant Geo Group. Finally, Leary’s motion to appoint counsel (Doc. 14) is DENIED.
SO ORDERED, this 22nd day of January, 2018.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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