LAWRENCE v. KEMP et al

Filing 16

ORDER REJECTING 12 Report and Recommendations; and GRANTING 15 Objection (construed as Motion to Amend Complaint). ORDER to Recast Complaint: Lawrence shall have FOURTEEN DAYS from the date of this order to recast his complaint on the Court's standard § 1983 form. Ordered by CHIEF DISTRICT JUDGE MARC T TREADWELL on 11/18/2021. (kat)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
ROOSEVELT LAWRENCE,
Plaintiff,
v.
GOVERNOR BRIAN KEMP, et al.,
Defendants.
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CIVIL ACTION NO. 5:21-CV-73 (MTT)

ORDER
After conducting a preliminary screening of Plaintiff Roosevelt Lawrence’s first
recast complaint (Doc. 5), United States Magistrate Judge Charles Weigle recommends
the complaint be dismissed without prejudice for failure to state a claim. Doc. 12 at 4-7.
Within Lawrence’s objection period, 1 Lawrence filed what the Court construes to be a
motion to amend his complaint. 2 See Doc. 15. In that motion, Lawrence seeks to add
factual allegations to support his Fourteenth Amendment due process and Eighth
Amendment deliberate indifference claims stemming from his segregation in a
“disciplinary unit” after testing positive for Covid-19. See generally id. For the following
reasons, the Court finds that Lawrence may amend his complaint as requested.
Accordingly, that motion (Doc. 15) is GRANTED. Lawrence is ORDERED to recast his
complaint to assert the factual allegations raised in his motion to amend (Doc. 15) and
1 Lawrence filed a motion for extension of time to file objections (Doc. 13) which the Court granted. Doc.
14. Lawrence’s objections were received within the time allowed by the Court’s extension. Doc. 15 at 10.

While Lawrence’s motion is captioned “Written Objection Opposing Recommendation of Dismissal,”
Lawrence cites Rule 15 language and requests leave to amend in lieu of dismissal. Doc. 15 at 1.
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shall recast his complaint within FOURTEEN DAYS of the date of this order. Because
Lawrence’s second recast complaint will supersede the original, the Recommendation
(Doc. 12) is REJECTED.
I. STANDARD
Leave to amend should be “freely give[n] . . . when justice so requires.” Fed. R.
Civ. P. 15(a)(2). The Court “need not, however, allow an amendment (1) where there
has been undue delay, bad faith, dilatory motive, or repeated failure to cure deficiencies
by amendments previously allowed; (2) where allowing amendment would cause undue
prejudice to the opposing party; or (3) where amendment would be futile.” Bryant v.
Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001) (citing Foman v. Davis, 371 U.S. 178,
182 (1962)). “[D]enial 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) (internal quotation marks and citation omitted).
II. DISCUSSION
In this case, Lawrence only recast his complaint once in response to the
Magistrate Judge’s order to “refile his complaint on a standard § 1983 form.” Doc. 3 at
2. Similarly, allowing an amendment would not prejudice the opposing parties because
Lawrence’s complaint has not yet been served. Therefore, the only question is whether
Lawrence’s requested amendment is futile.
A. Lawrence’s Due Process Claims are Not Futile
The Magistrate Judge recommends dismissal of Lawrence’s due process claims
because “[Lawrence] has not alleged any facts describing the conditions in
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segregation.” Doc. 12 at 5. “Whether an inmate has a protected liberty interest that
would entitle him to due process protections ‘is often a difficult determination in the
context of a prison, because prisoners have already been deprived of their liberty in the
ordinary sense of the term.’” Jacoby v. Baldwin Cnty., 835 F.3d 1338, 1346 (11th Cir.
2016) (quoting Bass v. Perrin, 170 F.3d 1312, 1318 (11th Cir. 1999) (emphasis in
original)). Nonetheless, “there are two circumstances in which a prisoner can be further
deprived of his liberty such that due process is required.” Bass, 170 F.3d at 1318.
First, a prisoner is entitled to due process “when an increased restraint ‘exceed[s] [his]
sentence in such an unexpected manner as to give rise to protection by the Due
Process Clause of its own force.’” Jacoby, 835 F.3d at 1346 (quoting Sandin v. Conner,
515 U.S. 472, 484 (1995) (alterations in original)). Second, a prisoner is entitled to due
process if a change in the prisoner’s conditions of confinement “‘imposes atypical and
significant hardship on the inmate in relation to the ordinary incidents of prison life.’” Id.
The second circumstance is relevant here. In his motion to amend, Lawrence
alleges he was moved from general prison housing in “K Building” to disciplinary
segregation in “J Building” after testing positive for Covid-19. Doc. 15 at 2. While in “J
Building,” Lawrence alleges he was confined to his flooded cell for twenty-four hours a
day with no ventilation, no heat, and mildew and feces covering the walls for a period of
nineteen continuous days. Id. at 6-7. Further, Lawrence claims he had “no access to
medical or correctional officers” in the event his Covid-19 symptoms worsened. Id. at 7.
While Lawrence does not directly address his previous conditions of confinement prior
to being moved to disciplinary segregation, he does note “I would have faired better in
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the [general] population of K building where I was originally being housed.” Id. As
alleged in his motion to amend, Lawrence states sufficient facts to survive futility review.
See Wallace v. Hamrick, 229 F. App'x 827, 830-31 (11th Cir. 2007) (placement in
administrative segregation for twenty-eight days without hot water, adequate ventilation,
or opportunity to exercise while awaiting disciplinary hearing supported due process
claim).
B. Lawrence’s Deliberate Indifference Claims are Not Futile
The Magistrate Judge recommends dismissal of Lawrence’s deliberate
indifference claims because “[Lawrence] has not pleaded any facts suggesting that he
had a serious medical need for which Defendants failed to provide him treatment” or
that “he suffered any [Covid-19] symptoms at all.” Doc. 12 at 7. “To show that a prison
official acted with deliberate indifference to serious medical needs, a plaintiff must
satisfy both an objective and a subjective inquiry.” Farrow v. West, 320 F.3d 1235,
1243 (11th Cir. 2003). A plaintiff must first “set forth evidence of an objectively serious
medical need” and must also “prove that the prison official acted with an attitude of
‘deliberate indifference’ to that serious medical need.” Id. In other words, prison
officials must both “know of and then disregard an excessive risk to the prisoner.” Dunn
v. Martin, 178 F. App’x 876, 877 (11th Cir. 2006) (per curiam). A “serious medical need”
is “one that has been diagnosed by a physician as mandating treatment or one that is
so obvious that even a lay person would easily recognize the necessity for a doctor’s
attention.” Farrow, 320 F.3d at 1243 (internal quotation marks omitted). A “serious

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medical need” may also exist when “a delay in treating the need worsens the condition.”
Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1307 (11th Cir. 2009).
At the time of his transfer, Lawrence alleges “at least 4 men have died” in the “K
Building” where he was housed. Doc. 15 at 2. Lawrence further alleges he was already
suffering from shortness of breath, fatigue, body aches, and coughing when he was
transferred from “K Building” to quarantine in “J Building.” Id. at 8. While in “J Building”
his respiratory symptoms worsened resulting in long-term breathing complications. Id.
at 5. Nonetheless, as alleged by Lawrence, the prison staff refused to transfer him to a
medical facility or provide any treatment whatsoever. Id. at 7-9. These new facts as
alleged are sufficient to survive futility review. See Mann, 588 F.3d at 1307.
III. CONCLUSION
Accordingly, Lawrence’s motion to amend (Doc. 15) is GRANTED. Lawrence is
ORDERED to recast his complaint to assert the factual allegations raised in his motion
to amend (Doc. 15). Lawrence shall recast his complaint within FOURTEEN DAYS of
the date of this order.
The recast complaint must contain a caption that clearly identifies by name each
individual that Lawrence has a claim against and wishes to include as a defendant in
this lawsuit. Lawrence must name only the individuals associated with the claim or
related claims that he is pursuing in this action. Lawrence must then tell the Court
exactly how each individual violated his constitutional rights, including (1) what each
defendant did (or failed to do) in violation of his rights; (2) when and where each action
occurred; and (3) how Lawrence was injured as a result of each defendant’s actions.
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He should state his claims as simply as possible and should not attempt to use formal
language or legalese. Lawrence must, however, complete the entire complaint form.
He may not leave any portion or paragraph without a response.
Lawrence’s recast complaint shall take the place of and supersede all
allegations made in the original complaint. The Court will therefore consider only
the factual allegations and claims contained in Lawrence’s recast complaint. The Court
will not consider those facts contained in Lawrence’s original complaint (Doc. 1) or first
recast complaint (Doc. 5). Any fact Lawrence deems necessary to prosecute his lawsuit
should be clearly stated in his recast complaint, even if Lawrence has previously alleged
it in another filing. Lawrence must also rename each defendant he wishes to sue as
directed by the Court’s standard § 1983 complaint form. If Lawrence fails to link a
named defendant to a specific claim, the claim will be dismissed; if Lawrence makes no
allegations in the body of his complaint against a named defendant, that defendant will
be dismissed. Lawrence shall attach no more than ten (10) additional pages to the
§ 1983 form.
Lawrence shall have FOURTEEN DAYS from the date of this order to recast his
complaint on the Court’s standard § 1983 form. While this action is pending, Lawrence
shall also immediately inform the Court in writing of any change in his mailing address.
Lawrence’s failure to fully and timely comply with this order may result in the dismissal
of his complaint. See Brown v. Tallahassee Police Dep’t, 205 F. App’x 802, 802 (11th
Cir. 2006) (citing Fed. R. Civ. P. 41(b) and Lopez v. Aransas Cty. Indep. Sch. Dist., 570
F.2d 541, 544 (5th Cir. 1978)).
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Because Lawrence’s second recast complaint will supersede the original, the
Recommendation (Doc. 12) is REJECTED.
SO ORDERED, this 18th day of November, 2021.
S/ Marc T. Treadwell
MARC T. TREADWELL, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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