SMITH v. PERRY et al
Filing
56
ORDER adopting 11 Report and Recommendations and denying 4 Motion to be Administered Medical Care; denying 5 Motion for Preliminary Injunction; denying 8 Motion for Proceedings to go Directly Before the D istrict Court Judge; denying 9 Motion to Compel; denying 10 Motion for Medical Care; ORDER denying 31 Amended Motion; denying 36 Motion for TRO; denying 36 Motion for Preliminary Injunction; denying 38 Motion to Appoint Counsel; de nying 41 Motion to Appoint Counsel; denying 48 Motion for Protective Order; denying 50 Motion for Defendants to Cease Retaliation; denying as moot 52 Motion to Renew Prior Motions; granting in part and denying in part 49 Motion for Subpoena Duces Tecum to be Issued. To the extent that it asks the Court to subpoena certain evidence but GRANTS IN PART the Motion to the extent that it seeks blank subpoena forms. The CLERK is DIRECTED to forward Plaintiff five signed but otherwise b lank subpoena forms pursuant to Fed. R. Civ. P. 45(a)(3). If Plaintiff wants to amend his complaint to add factual allegations, Plaintiff is GRANTED limited leave to amend his complaint consistent with the instructions set forth above. Plaintiff shall have 14 DAYS from the date of this Order to file an amended complaint. Ordered by US DISTRICT JUDGE TILMAN E SELF, III on 5/10/2022. (ggs)
Case 5:22-cv-00044-TES-TQL Document 56 Filed 05/10/22 Page 1 of 48
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
LESTER J. SMITH, JR.,
Plaintiff,
CIVIL ACTION NO.
5:22-cv-00044-TES-TQL
v.
Warden CLINTON PERRY, et al.,
Defendants.
ORDER
Pro se Plaintiff Lester J. Smith, Jr., an inmate at Macon State Prison in
Oglethorpe, Georgia, filed a civil rights Complaint [Doc. 1] under 42 U.S.C. § 1983. He
also moved to proceed in this action in forma pauperis. [Doc. 2]; [Doc. 7].
However, before the United States Magistrate Judge could consider the merits of
this preliminary matter, Plaintiff filed a slew of motions: an Emergency Motion to be
Administered Medical Care [Doc. 4], a Motion for Preliminary Injunction [Doc. 5], a
Motion to Compel Defendants to Complete & Return the Informa Pauperis Documents
[Doc. 6], a Motion for Proceedings to Go Directly Before the District Judge [Doc. 8], an
Emergency Motion to Compel Defendants to Permanently Invoke Security Threat
Group Lock-Down Status [Doc. 9], and a second Motion for Medical Care [Doc. 10].
The United States Magistrate Judge decided to address all pending matters at the time
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in his Order and Recommendation (“O&R”). See generally [Doc. 11]. Therefore, on
March 4, 2022, the United States Magistrate Judge granted Plaintiff’s Motion to Proceed
In Forma Pauperis, consequently, denied his Motion to Compel Defendants to Complete
& Return Informa Pauperis Documents as moot, and recommended that his Motion for
Proceedings to Go Directly Before the District Judge be denied. [Id. at pp. 2, 4–5, 7–8].
Upon review of the merits of Plaintiff’s substantive claims, the Magistrate Judge found
that six of his claims should proceed for further factual development and recommended
that all other claims be dismissed without prejudice. [Id. at pp. 23–43]. The Magistrate
Judge also recommended that all four motions for preliminary injunctive relief be
denied. [Id. at pp. 43–47]. The Magistrate Judge’s recommendations are all pending
before the Court.
Additionally, since the Magistrate Judge issued these recommendations, Plaintiff
has submitted twenty-six new filings. These filings include four sets of Objections [Doc.
32], [Doc. 33], [Doc. 37], [Doc. 40]; two Motions to Appoint Counsel [Doc. 38], [Doc. 41];
an Amended Motion for a Preliminary Injunction [Doc. 31]; a Motion for a Temporary
Restraining Order [Doc. 36]; a Motion for a Protective Order [Doc. 48]; a Motion for
Defendants to Cease Retaliation [Doc. 50]; a Motion for a Subpoena Duces Tecum [Doc.
49]; a Letter [Doc. 39] to the Judge; four Notices [Doc. 42], [Doc. 44], [Doc. 47], [Doc. 55]
for Filing Evidence; eight Affidavits and/or Declarations [Doc. 30], [Doc. 34], [Doc. 35],
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[Doc. 43], [Doc. 45], [Doc. 46], [Doc. 53], [Doc. 54]; an Amended Complaint [Doc. 51];
and a Motion to Renew all Prior Motions [Doc. 52].
As an initial matter, the extensive nature of Plaintiff’s filings to date is bordering
on abusive, especially since several of these filings are repetitive or otherwise
procedurally improper. The Court cautions Plaintiff that throughout this case, he must
follow the Federal Rules of Civil Procedure, the Local Rules, and any Court-issued
orders. If Plaintiff continues to flout the Local Rules and bombard the Court with
improper filings, he may be subject to sanctions. See Chambers v. NASCO, Inc., 501 U.S.
32, 43 (1991) (citation omitted) (explaining that the courts have inherent power “to
manage their own affairs so as to achieve the orderly and expeditious disposition of
cases”).
Nevertheless, the Court will address all pending matters in this case—beginning
with Plaintiff’s Motion for Proceedings to Go Directly Before the District Judge. Then,
the Court will address both Motions to Appoint Counsel and the Motion for a Subpoena
Duces Tecum. Next, the Court considers the evidence filed and Plaintiff’s objections to
the O&R regarding the dismissal of his substantive claims. Then, the Court turns to
Plaintiff’s “Amended Complaint”, before resolving all pending motions for injunctive
relief.
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DISCUSSION
A.
Motion for Proceedings to Go Directly Before the District Judge
Early in the proceeding, Plaintiff moved for this case to proceed before the
undersigned District Judge instead of being referred to the Magistrate Judge. See [Doc.
8]. In response, the Magistrate Judge explained to him that the referral was proper
under 28 U.S.C. § 636(b)(1) and Local Rule 72, which authorize referrals for all pretrial
matters other than dispositive motions. [Doc. 11, pp. 7–8]. The Magistrate Judge
therefore recommended that this Motion be denied. [Id.].
In his first set of objections, Plaintiff objects to the recommendation “on more
grounds that his motions of a pretrial nature that the magistrate is unable to hear, be
heard by the district court judge.” [Doc. 32, p. 1]. In his second set of objections, Plaintiff
makes a similar argument, i.e., that his motions are of a dispositive nature, for which
the Magistrate Judge can’t make a final decision; therefore, his case should go before the
undersigned District Judge. [Doc. 33, p. 1]. This is one example of how Plaintiff has
submitted repetitive filings in this case.
Regardless, Plaintiff’s objections don’t show that referral to the Magistrate Judge
is in any way improper. The Magistrate Judge has not entered any inappropriate
rulings on dispositive issues. Instead, he has only made recommendations on such
matters. And, the undersigned District Judge will ultimately settle all dispositive
matters. To the extent that Plaintiff asserts that his claims should go directly before the
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undersigned because they are time-sensitive, the Court finds that the Magistrate Judge
has addressed Plaintiff’s claims in a timely manner. If anything, Plaintiff has delayed
the resolution of his case by submitting piecemeal, frivolous and repetitive affidavits,
declarations, objections, and motions. Thus, on de novo review, the Court now ADOPTS
that portion of the O&R denying Plaintiff’s Motion for Proceedings to Go Directly
Before the District Judge [Doc. 8].
B.
Motions to Appoint Counsel
Plaintiff has filed two Motions to Appoint Counsel. See [Doc. 38]; [Doc. 41].
However, in other filings, Plaintiff again argues that he needs to have counsel
appointed for him in this case. See, e.g., [Doc. 43, Smith Decl., p. 1]. Once again, this is an
example of how Plaintiff files repetitive documents that ultimately inhibit a much more
efficient resolution of his case.
In the first Motion to Appoint Counsel, Plaintiff asserts that Defendants, as well
as other unnamed individuals, have impeded his legal mail. [Doc. 38, p. 1]. Plaintiff
contends that if these impediments continue, he will not be able to timely file things in
this case. [Id.]. Thus, he seeks to have counsel appointed to avoid any such issues. [Id.].
In support, Plaintiff submits a letter that he wrote asserting that someone failed to give
him copies of his legal mail and that people are otherwise impeding his mail. [Doc. 381]. However, upon review of the docket, the Court finds it difficult to accept this
assertion as true. To date, Plaintiff appears to be receiving mail from this Court as he
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has responded to the Court’s Orders in a timely manner. Similarly, Plaintiff’s outgoing
mail appears to be reaching the Court, insofar as the Court has received numerous
submissions from Plaintiff.
In the second Motion to Appoint Counsel, Plaintiff asserts that he is unable to
afford counsel, the issues in the case are complex and require work that he is unable to
do, and he is in segregation with limited law library access. See [Doc. 41]. Additionally,
Plaintiff contends that he “has limited knowledge of the law”, “witnesses will need to
be interviewed”, and Defendants are likely to lie and manipulate evidence. [Id. at pp. 1–
2]. Plaintiff attached a memorandum of law in support of this second Motion, wherein
he states that his case is factually complex and may need expert witnesses, he lacks the
ability to investigate because he is in segregation, there will be conflicting testimony, he
has no legal training, and his case has merit. See [Doc. 41-2]. Plaintiff also attached a
declaration with similar statements. See [Doc. 41-3, pp. 1–3].
“Appointment of counsel in a civil case is not a constitutional right.” Wahl v
McIver, 773 F.2d 1169, 1174 (11th Cir. 1986). Instead, appointment of counsel is a
privilege that is justified only by exceptional circumstances. Id. In deciding whether
legal counsel should be provided, the Court considers, among other factors, the merits
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of Plaintiff’s claim and the complexity of the issues presented. Holt v. Ford, 862 F.2d 850,
853 (11th Cir. 1989). 1
In accordance with Holt, and upon a review of the record in this case, the Court
finds that Plaintiff has set forth the essential factual allegations underlying his claims,
and that the applicable legal doctrines are readily apparent. As such, Plaintiff’s Motions
for Appointment of Counsel [Doc. 38]; [Doc. 41] are DENIED. Should it later become
apparent that legal assistance is required to avoid prejudice to Plaintiff’s rights, the
Court, on its own motion, will consider assisting him in securing legal counsel at that
time. Consequently, there is no need for Plaintiff to file additional requests for counsel.
C.
Motion for Subpoena Duces Tecum
Plaintiff has also moved for a subpoena form pursuant to Fed. R. Civ. P. 45(a)(3),
because it is relevant to the claims that the Magistrate Judge allowed to proceed for
further factual development. See generally [Doc. 49]. Plaintiff apparently seeks
information relating to his assigned housing units and certain surveillance footage, as
well as the names of any personnel who were involved in transferring him to a different
building, video footage from a particular day, and grievances he filed relating to an
attack he previously suffered. [Id. at pp. 1– 2].
The federal in forma pauperis statute authorizes courts to “request an attorney to represent any person
unable to afford counsel.” 28 U.S.C. § 1915(e)(1). The statute does not, however, provide any funding to
pay attorneys for their representation or authorize courts to compel attorneys to represent an indigent
party in a civil case. See Mallard v. U.S. Dist. Ct. for S. Dist. of Iowa, 490 U.S. 296 (1989).
1
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As noted in the Magistrate Judge’s O&R, discovery doesn’t begin until the
defendants (from whom discovery is sought) either file an answer or dispositive
motion. See [Doc. 11, p. 49]. Moreover, once discovery begins, Plaintiff is responsible for
making discovery requests directly upon the defendants from whom he is seeking
discovery materials. See [id. at p. 50 (providing that “[n]o party shall be required to
respond to any discovery not directed to him or served upon him by the opposing
counsel/party”)]. Thus, to the extent that Plaintiff asks the Court to subpoena specific
evidence, his Motion is DENIED.
In the alternative, pursuant to Fed. R. Civ. P. 45(a)(3), “[t]he clerk must issue a
subpoena, signed but otherwise in blank, to a party who requests it.” To the extent that
Plaintiff asks for blank subpoena forms, his Motion is GRANTED. To this point,
Plaintiff doesn’t identify how many forms he needs, but he seeks several different
pieces of evidence. Some of this evidence may be available to Plaintiff through
discovery without a subpoena. Regardless, out of an abundance of caution, the CLERK
is DIRECTED to provide Plaintiff with five signed, but otherwise blank, subpoena
forms. The Court advises Plaintiff that any subpoenas served in this case must comply
with Fed. R. Civ. P. 45, along with any other applicable rules in the Federal Rules of
Civil Procedure. Further, Plaintiff is reminded that just because the Court has found
him to be indigent so that he may proceed without immediately paying his filing fee,
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his indigent status does not waive the costs of his case such as witness fees required to
accompany subpoenas. He must still pay those costs.
D.
Evidence
Next, the Court considers Plaintiff’s Letter, his four Notices of Filing Evidence,
and eight Affidavits and/or Declarations under a singular analysis. It appears that
Plaintiff intended for these filings to be considered evidence in support of his § 1983
claims. Federal Rule of Civil Procedure 7(a) governs the pleadings allowed in a case,
which include, among other things, the complaint, the answer, and if ordered, the reply.
Rule 7(b) sets forth the requirements for motions and other filings seeking court orders
for relief. Fed. R. Civ. P. 7(b). None of Plaintiff’s 13 filings described above constitute
pleadings, motions, or filings seeking a court order for relief. And while Rule 7
expressly contemplates the submission of “other paper,” nothing in the Federal Rules of
Civil Procedure otherwise contemplates a party filing multiple pieces of evidence
directly on the docket in a civil action. Moreover, the Magistrate Judge instructed
Plaintiff in the O&R that “[d]iscovery materials shall not be filed with the Clerk of
Court.” [Doc. 11, p. 50].
Plaintiff has filed twelve such pieces of supposed “evidence” within a month and
a half. Because these submissions spread the evidence and factual allegations across so
many documents, they are preventing the Court from fully and accurately reviewing
Plaintiff’s claims.
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Indeed, Plaintiff’s Complaint is currently in the preliminary review stage. The
Court’s duty at this stage is to review the allegations of the pleading to determine
whether Plaintiff’s Complaint is frivolous or malicious or fails to state a claim. See 28
U.S.C. § 1915(e)(2)(B). The Court makes this determination based on the pleadings, and
Plaintiff does not need to file things he believes to be evidence to satisfy this standard
because the Court presumes that his well-pled allegations are true. See Brown v. Johnson,
387 F.3d 1344, 1347 (11th Cir. 2004) (explaining that, when performing the preliminary
review, the court must accept all factual allegations in the complaint as true). Evidence
in support of his claims may be properly presented either in support of or opposition to
a dispositive motion, such as a motion for summary judgment, or at trial. See, e.g., Fed.
R. Civ. P. 56 (regarding summary judgment motions).
In the alternative, Plaintiff may have intended some or all of this evidence to be
considered in support of one of his multiple motions for injunctive relief. However, any
evidence intended to support one of his motions for injunctive relief should be
presented with that motion. Again, Plaintiff has spread information intended to support
his various motions across the docket, which in turn inhibits the Court’s ability to
effectively review his claims. Plaintiff should not expect the Court to sift through
multiple filings to determine what is relevant to each of his requests for relief. In light of
the above, the Court will not consider the allegations set forth in Plaintiff’s various
evidentiary submissions at this time. If Plaintiff wants the Court to consider such
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evidence, he must present it at the appropriate time and in the appropriate manner.
However, the Court once again takes the opportunity to remind Plaintiff that he may
not file routine discovery matters for just any purposes.
E.
Plaintiff’s Objections to the Dismissal of Substantive Claims
As noted above, Plaintiff submitted four sets of Objections to the Magistrate
Judge’s O&R. While Plaintiff has the right to file objections to the Magistrate Judge’s
recommendations, he has done so in a very disruptive manner. Plaintiff has submitted
four sets of Objections, which he filed over a period of two weeks. Moreover, it appears
that Plaintiff intended for information in his various Affidavits, Declarations, and
Notices to be considered in support of his Objections. As discussed above, this type of
piecemeal filing (in violation of Local Rule 7.4) doesn’t allow the Court to effectively
review Plaintiff’s allegations or his objections. Rather, the Court spent considerable time
reviewing all filings to ensure that it carefully considered Plaintiff’s Objections—a task
that has severely delayed the preliminary review stage.
While the Court could order Plaintiff to file a single set of objections, it finds that
such an order would only prolong resolution of these preliminary matters. Therefore,
given the unique posture of this case, the Court now considers Plaintiff’s Objections to
the Magistrate Judge’s recommended dismissal of his substantive claims.
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1.
Deliberate Indifference to Safety Claim against Commissioner
Ward
In his O&R, the Magistrate Judge recommended that Plaintiff’s deliberate
indifference to safety claim against Commissioner Ward be dismissed because Plaintiff
failed to allege facts regarding Ward’s actual knowledge of the violence at Macon State
prison. See [Doc. 11, p. 25]. In his second set of Objections, Plaintiff objects to the
dismissal of Ward, asserting that Ward “has been put on notice of Plaintiff’s incidents
and all other acts of violence through grievances and reports from defendants and
media reports.” [Doc. 33, p. 1]. Plaintiff contends that, in a deposition for a separate
lawsuit, Ward testified that his responsibilities include overseeing day-to-day
management of the Georgia Department of Corrections, operation of its four divisions,
overall supervision of operations, and administration of the facility, which includes
“‘oversight of security and custody of inmates housed within the GDOC, and
management of prison staff.’” [Id. at p. 2]. Plaintiff appears to assert that these
responsibilities, coupled with Plaintiff’s correspondence, put Ward on notice of the facts
underlying his claims. [Id.].
First, Plaintiff isn’t specific about the type of correspondence that he sent to Ward
or what Ward would have known with regard to any particular claim. And second,
Plaintiff’s new allegations still fail to show a subjective awareness on the part of Ward
as to the particular situation or the level of violence at Macon State Prison. Thus, it does
not appear that his objections warrant any change to the recommended dismissal. The
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Court ADOPTS that portion of the O&R dismissing Plaintiff’s deliberate indifference to
safety claim against Ward.
2.
Deliberate Indifference to Safety Claims Against Unit Manager
Knight, Warden Smith, Deputy Wardens Sales and Eady,
Sergeant Tullis, and Officer Cross
Next, Plaintiff objects to the Magistrate Judge’s recommended dismissal of the
deliberate indifference to safety claims against Unit Manager Knight, Warden Smith,
Deputy Wardens Sales and Eady, Sergeant Tullis, and Officer Cross. These claims arise
from Plaintiff’s allegations that his health and safety were put at risk because, in a single
day, two fires were set inside Plaintiff’s building. When recommending dismissal, the
Magistrate Judge found that Plaintiff failed to allege sufficient facts showing that these
Defendants had any reason to know that the second fire would be set or that they were
aware of the second fire and disregarded a danger to Plaintiff. [Doc. 11, pp. 25–27]. In
his second Objection, Plaintiff argues that Defendants came on to their shift after the
first fire was set so, presumably that means they would have been present during the
second fire. [Doc. 33, p. 2]. Relatedly, he asserts that the “defendants had a duty
regarding the first fire to follow [Georgia Department of Corrections] fire evacuation
protocols, and ‘aftermath’ instructions in the event of a fire.” [Id.]. Furthermore,
according to Plaintiff, Georgia Department of Corrections officials hold a daily briefing
to discuss prison activity. [Id.]. However, Plaintiff fails to allege any facts suggesting
that the officials discussed either fire during this briefing. [Id.].
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In his Complaint, Plaintiff refers to the Georgia Department of Correction’s
standard operating procedures. He argues that the Magistrate Judge misconstrued his
references to the standard operating procedures in relation to the claims alleged. [Id. at
p. 3]. He argues that the failure to comply with these procedures demonstrates a
violation of his constitutional rights. [Id.]. Plaintiff asserts that “Knight is the building
manager, Tullis is the supervisor, Cross is the floor officer of said building. [Id.].
Wardens Sales and Eady are their direct supervisors and responsible for Plaintiff’s
constitutional right to security and safety.” [Id.].
To the extent that Plaintiff uses the standard operating procedures to support his
claims, the Magistrate Judge in his O&R correctly explained how the failure to follow
such procedures does not, on its own, show a constitutional claim. With regard to the
fire, Plaintiff’s allegations appear to be intended to show that Defendants worked in the
building where the second fire was set. However, Plaintiff doesn’t include specific
allegations showing that any Defendant was aware of the second fire. And while
Plaintiff asserts that Defendants should have followed “fire evacuation protocols” and
“aftermath” instructions, he does not explain what they should have done differently to
comply with these protocols. Insofar as Plaintiff’s objections do not show that
Defendants had actual knowledge of the fire and disregarded any risk of harm, it still
does not appear that he has stated a claim in this regard. The Court ADOPTS that
portion of the O&R dismissing Plaintiff’s deliberate indifference to safety claims against
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Unit Manager Knight, Warden Smith, Deputy Wardens Sales and Eady, Sergeant Tullis,
and Officer Cross.
3.
Deliberate Indifference to Safety Claim Regarding Cellmate
In his Complaint, Plaintiff alleges that his cellmate Jakari Daniel is a member of
the Good Fellas gang and that the Georgia Department of Corrections officials conspire
with the Good Fellas to harm Plaintiff. In support of this, Plaintiff asserts that gang
members threatened him on November 26, 2021, by stating that if he spoke about what
happened, “he would die in the hole.” Thereafter, his cellmate “who possibly was a
former G.F. affiliate . . . came to segregation armed with a homemade knife.” Plaintiff
also asserts that Defendants did not search the cellmate to find the knife and that the
cellmate was able to use drugs in the cell without punishment.
Upon review of these allegations, the Magistrate Judge recommended dismissal
of the deliberate indifference to safety claim because Plaintiff failed to assert facts
showing that Daniel was actually a member of the Good Fellas or that Daniel had
presented any danger to him. [Doc. 11, pp. 27–28]. The Magistrate Judge found his
allegations to be mere speculation. [Id.].
In his second Objection, Plaintiff asserts that, on the occasion when his cellmate
spat on Knight (an incident discussed in the O&R), the cellmate used a phrase that is
only used by the Good Fellas. [Doc. 33, p. 3]. Plaintiff also asserts that his cellmate was
using drugs and pulled a knife on Plaintiff. [Id.]. Plaintiff told Cross and Tullis about the
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incident, but they said they couldn’t move the cellmate because all the other cells were
full. [Id.]. Tullis offered to place the cellmate in general population, but the cellmate
declined this offer. [Id.].
These allegations were not in Plaintiff’s Complaint. His contention that he told
Cross and Tullis that his cellmate pulled a knife on him could arguably show that Cross
and Tullis were aware of a potential risk of harm to Plaintiff. On the other hand,
Plaintiff’s allegations are vague insofar as he does not explain what happened during
the altercation with the cellmate. Plaintiff alleges that the cellmate produced the knife,
but it does not seem that the cellmate actually attempted to use it on Plaintiff or had
otherwise ever physically tried to harm Plaintiff. Thus, these new allegations still do not
show that Plaintiff’s cellmate posed an unreasonable risk of harm to Plaintiff and that
Defendants disregarded this risk of harm for the purposes of a deliberate indifference
claim.
Then, in his fourth Objection, Plaintiff voices his objection to the dismissal once
again. [Doc. 40, p. 5]. Plaintiff asserts that Defendants knew that Plaintiff had been
assaulted by members of the Good Fellas gang on November 26, 2021. [Id.]. He contends
that, immediately following the attack, Defendants deliberately refused to watch
surveillance camera footage of the attack and failed to afford him medical care. [Id.]. He
also asserts that Defendants acted with deliberate indifference by placing him in a cell
with a mental health patient who had violent episodes. [Id.]. Moreover, he asserts that
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Defendants failed to protect him from his cellmate’s drug use and threats of violence at
knife point. [Id.]. He argues that these allegations are not conclusory. [Id.].
Plaintiff notes that he has a right to be free from retaliation. [Id. at p. 6.]. He then
states that his cellmate displayed violent conduct directed towards both staff and
Plaintiff. [Id.]. In particular, Plaintiff refers to his cellmate spitting on Defendant Knight
and lashing out at staff members. [Id.]. Although he still refers to potential gang
affiliation, Plaintiff appears to have shifted his focus somewhat to his cellmate’s status
as a mental health patient. See [id.]. Although a mental health patient could potentially
present a danger to his cellmate, it seems unlikely that his cellmate’s mental health
status alone would constitute a dangerous condition. Instead, any plaintiff asserting
such a claim would need to show that his cellmate had exhibited dangerous behavior.
Moreover, Plaintiff’s cellmate’s actions have largely been focused on staff, which seems
contradictory to Plaintiff’s allegations that staff were conspiring with Plaintiff’s
cellmate. The Court ADOPTS that portion of the O&R dismissing Plaintiff’s deliberate
indifference to safety claim against his cellmate.
4.
Deliberate Indifference to a Serious Medical Need Claim
Regarding Skin Issues
In his O&R, the Magistrate Judge recommended that Plaintiff’s deliberate
indifference to a serious medical need claim be dismissed as it related to the worsening
of his skin conditions because Plaintiff failed to assert facts showing that any Defendant
had been deliberately indifferent to the alleged sores and hives amassing on his skin.
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[Doc. 11, pp. 34–35]. In particular, the Magistrate Judge found that Plaintiff didn’t show
that any Defendant was specifically aware of his skin issues and then ignored the risk of
harm related to them. [Id. at p. 34].
In his second Objection, Plaintiff argues that the Court should focus on the
personal hygiene issue that exacerbated his skin problems, rather than Defendants’
knowledge of the skin problems themselves. [Doc. 33, p. 3]. Since this objection does not
provide a basis for rejecting the recommendation, the Court stands by the Magistrate
Judge’s original findings and conclusions.
In his third Objection, Plaintiff again asserts that, with regard to the claim about
his skin issues and Defendants’ failure to provide him with a shower, the Court should
focus on the conditions of his confinement rather than Defendants’ actual knowledge of
his skin issues. [Doc. 37, p. 2]. On this point, he contends that it would violate his
privacy rights for Defendants to know about his skin issues. [Id.]. As noted above, the
Magistrate Judge allowed Plaintiff to proceed on his conditions of confinement claim
relating to the lack of showers but recommended dismissal of his deliberate indifference
to a serious medical need claim in that regard. To state a claim for deliberate
indifference to a serious medical need, the defendant must have known about and
disregarded a risk of harm from a serious medical need. Without such knowledge, the
claim can’t stand. Thus, the recommendation to dismiss Plaintiff’s deliberate
indifference to a serious medical need claim was proper insofar as Plaintiff alleged no
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facts to show any knowledge of his medical need. The Court ADOPTS that portion of
the O&R dismissing Plaintiff’s deliberate indifference to a serious medical need claim
regarding his skin conditions.
5.
Deliberate Indifference to a Serious Medical Need Regarding
Contaminated Cell
Plaintiff also objects to the recommendation that the Court dismiss Plaintiff’s
claims relating to being left in a contaminated cell. [Doc. 32, p. 4]. The recommendation
recognized that placement in a contaminated cell could constitute a continuation of the
use of excessive force, and the recommendation allowed Plaintiff’s excessive force claim
to proceed. Placement in a contaminated cell can also be the basis for a deliberate
indifference to a serious medical need claim, but here, Plaintiff has not alleged facts
showing that Defendants were aware of his breathing problems and other
complications that Plaintiff asserts he suffered as a result of being put back into the
contaminated cell. Therefore, it still does not appear that Plaintiff has stated a deliberate
indifference to serious medical need claim in this regard.
6.
Deliberate Indifference to a Serious Medical Need Regarding
Smoke Inhalation
Plaintiff objects to the recommendation that the Court dismiss claims against
Defendants based on smoke inhalation. [Doc. 33, p. 4]. In this regard, Plaintiff’s
statement is somewhat unclear. He says that “all named defendants for this instance
were aware as they came in during the second fire and used a fire extinguisher to put
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out the fire, and saw the first fire and abandoned that duty as the Magistrate found
[D]efendant Whitehead to do.” [Id.]. It appears that Plaintiff is saying that all
Defendants acted in a way that was similar to how Whitehead acted, such that, because
the Magistrate Judge allowed a claim to proceed against Whitehead, that claim should
also go forward as to the other Defendants. In this regard, Plaintiff does not specify the
particular individuals involved, instead he generically asserts that all Defendants acted
in the same way. This sort of general assertion isn’t sufficient to allow Plaintiff to
overcome the recommendation of dismissal on this claim.
7.
Conditions of Confinement Claim Regarding Covid-19 Safety
Protocols
The Magistrate Judge recommended that Plaintiff’s claims relating to the failure
to take precautions against Covid-19 be dismissed. Plaintiff “objects to the Covid-19
precautions” and argues “that the conduct by [D]efendants subjected [him] to
unreasonable risks of safety violations[.]” [Id.]. Plaintiff also asserts that Defendants
intentionally placed a prisoner who had tested positive for Covid-19 in Plaintiff’s
segregation cell. [Id.]. 2 Next, Plaintiff asserts that he has Hepatitis C, and Defendants
knew about it. [Id. at p. 5]. He contends that “[D]efendants’ intentional tacit commands
were in fact intentional by obstructing all Covid-19 guidelines to cause Plaintiff to
While Plaintiff voiced his concern about the placement of this prisoner in his cell, he did not mention it
in his Complaint.
2
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become infected in segregation by his cellmate who had Covid-19.” [Id.]. Thus, he
asserts that Defendants were deliberately indifferent to his health and safety.
On this claim, Plaintiff again makes only general arguments. He refers to
Defendants generally without delineating any particular actions taken by any particular
individual. As to Defendants placing the infected inmate in Plaintiff’s cell, Plaintiff
similarly does not say who was responsible for taking this action. Thus, this objection
does not appear to provide a basis for finding that Plaintiff has stated a claim in this
regard.
In his fourth Objection, Plaintiff begins by reiterating his objections to the
recommendation that the Court dismiss his claim regarding the lack of Covid-19
precautions. [Doc. 40, p. 1]. Plaintiff asserts that a sanitary environment constitutes a
basic human need and that Defendants can be held to be deliberately indifferent if they
know about unsanitary conditions. [Id.]. Plaintiff goes on to say that Defendants failed
to adhere to Covid-19 precautions. [Id. at pp. 1–2]. Additionally, Plaintiff again asserts
that an unidentified Defendant placed another prisoner into Plaintiff’s cell knowing that
the prisoner was positive for Covid-19. [Id. at p. 2]. As before, Plaintiff does not provide
specific information regarding which Defendants were responsible for putting the
prisoner into Plaintiff’s cell, nor does he specifically connect any other Defendant with
this claim. [Id.].
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Plaintiff also asserts that Defendant Dr. Cowens failed to wear a mask while
assessing patients, which caused him to contract Covid-19 and be absent from work
between April 15 and November 2020. [Id.]. Plaintiff does not explain how Cowens’
failure to wear a mask or his contracting Covid violated Plaintiff’s rights. See [id.].
Plaintiff also asserts that other defendants, guards, and prisoners have contracted
Covid. [Id.]. Again, Plaintiff’s allegations appear too broad and generic to state a claim
for relief, particularly because Plaintiff does not explain what actions any particular
individual took or failed to take and how those actions affected Plaintiff.
8.
First Amendment Claims Regarding Grievances
Plaintiff next objects to the recommendation’s interpretation of his claim
regarding grievances. [Id.]. On this claim, Plaintiff asserts that the recommendation
mistakenly concluded that Williams and Boyer had each only rejected his grievances
once when, in fact, they did so several times under emergency circumstances. [Doc. 33,
p. 5] In his Complaint, Plaintiff identified a single instance of Williams telling Plaintiff
that she would not accept “‘any more of [his] stupid grievances.’” Thereafter, a different
counselor accepted the grievance that she refused. Similarly, Plaintiff identified a single
incident of Boyle refusing to accept two grievances because Plaintiff already had two
grievances pending. Again, another counselor accepted the grievances. In his Objection,
Plaintiff asserts that these two Defendants refused his grievances “several times.” [Id.].
This allegation is not specific and, even assuming that Boyle and Williams refused to
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accept grievances on more than one occasion each, Plaintiff does not identify any actual
grievance that he has been unable to file. Moreover, as discussed in the
recommendation, Plaintiff does not assert facts to show that this has amounted to a
particular constitutional violation, such as by showing that he has suffered an actual
injury for the purposes of a right of access to the courts claim.
9.
Claims Regarding Two-Limit Grievances
Plaintiff makes a general objection to the recommendation that he has not stated
a claim with regard to the two-grievance limit. [Doc. 40, p. 3.]. He asserts that the twogrievance limit “is in fact unconstitutional and a blanket policy on its face.” [Doc. 33, p.
5.]. He complains that the limit allows staff members to violate his constitutional rights
while he has two grievances pending because he will have to release one of his
grievances in order to file a new one. [Id.]. This objection generally reiterates his original
claim and does not show that the limit is actually unconstitutional.
10.
Claims Regarding Dietary Concerns
Next, Plaintiff objects to the recommendation that the Court dismiss his dietary
claims. [Doc. 32, p. 6]. He asserts that Defendants must provide adequately nutritious
food. He further asserts that some inmates, including Plaintiff, require a 2800 or 3000
calorie diet, but that they do not receive their medically prescribed meal. [Id.]; [Doc. 33,
p. 6]. Plaintiff contends that someone puts a notation on the trays representing that his
meals satisfy the medically prescribed diet requirement, but in reality, they are not.
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[Doc. 33, p. 6]. Thus, he argues that he has stated a claim for deliberate indifference
based on being denied his medically prescribed meals.
Plaintiff doesn’t provide any specific facts regarding the meals themselves, why
he is prescribed a medical diet, or how the meals are deficient in relation to his medical
needs. Moreover, he does not include specific facts tying any defendant into this claim,
instead making general assertions attributing problems with the food to Defendants. To
the extent that he intends this claim to lie against the John Doe defendants, he still has
not provided any specific description of those defendants. And to the extent that he
intends it to lie against the other named defendants, he has not provided any
explanation as to their knowledge of his medical needs.
In his fourth Objection, Plaintiff brings up his dietary claims once again. [Doc. 40,
p. 2]. Plaintiff asserts that “Smith, Perry, and Dozier are responsible for overseeing the
functions of the prison and ensuring Plaintiff receives those meals.” [Id.]. He contends
that all Defendants failed to provide him with his dietary meals and that they provide
him meals that are fraudulently marked as dietary meals. [Id.]. As before, Plaintiff
doesn’t explain what is deficient about his meals in relation to his medical needs, nor
does he provide any information to show that any Defendant is somehow responsible
on this claim.
Plaintiff further asserts that he has attached a medical request form directed to
Dr. Cowens asking for information about medicines prescribed for hypertension and
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pain, a refill on his medication, and the results of an MRI. [Id. at p. 3]. It is unclear how
this would relate to Plaintiff’s medical diet. He also says that he has attached “another
falsified diet sticker” that was placed on a tray that did not comply with his dietary
needs. [Id.]. Plaintiff asserts that he is prediabetic and has been “served improper meals
upon all meals throughout the days and years while at Macon State Prison.” [Id.].
Again, Plaintiff’s allegations in this regard are generic allegations without supporting
factual information necessary to show that anyone actually violated his constitutional
rights. In particular, Plaintiff provides no information as to how the meals are
inadequate or do not meet his medical needs. Thus, he still has not stated a claim in this
regard.
11.
Claims Against Officer Cross
Plaintiff objects to the dismissal of his claims against Officer Cross, asserting that
because the Magistrate Judge allowed the claims against Tullis, Knight, and Smith to go
forward, claims against Cross should go forward as well. [Doc. 33, p. 6]. In this regard,
Plaintiff asserts that “Cross was in fact directly involved with [D]efendants Tullis and
Knight on a day to day basis.” [Id.]. He also asserts that Defendants still refuse to let
him shower. [Id.].
As discussed above, Plaintiff again only makes broad allegations that Cross was
“involved with” the Defendants against whom the Magistrate Judge allowed claims to
go forward. Plaintiff does not specify what involvement Cross had or how, in
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particular, Cross violated his rights. 3 Thus, it does not appear that this objection
provides a basis for rejecting the recommendation.
In his third Objection, Plaintiff again objects to the recommendation that the
Court dismiss Cross as a party. [Doc. 37, p. 1]. In support of this Objection, Plaintiff
asserts that Cross “worked daily . . . alongside defendants Tullis [and] Knight” in
Plaintiff’s building and that he conspired with other Defendants to violate Plaintiff’s
rights. [Id.]. He also generally states that Cross “implemented and enforced those
unlawful, non-procedural policies” against Plaintiff and that he willfully agreed to
violate Plaintiff’s rights. [Id.]. As discussed above, Plaintiff’s allegations against Cross
are generic and conclusory, saying that Cross violated Plaintiff’s rights without
providing any factual support showing what Cross did that was a constitutional
violation. Thus, this again does not provide grounds for rejecting the recommendation.
12.
Claims Against Warden Perry
Plaintiff also objects to the recommendation that his claims be dismissed as to
Defendant Warden Perry. [Id. at p. 7]. In the Complaint, Plaintiff made no allegations
against Perry in his statement of facts. In the Objection, Plaintiff adds that Perry was the
warden at Macon State Prison and was aware of violence in the prison. [Id.]. Plaintiff’s
allegations with regard to the first time he was attacked included that the attack
In other motions, Plaintiff does include more specific allegations as to Cross, but he doesn’t do so in a
pleading or this Objection.
3
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occurred in July 2020. It appears that Warden Smith replaced Warden Perry on July 1,
2020, such that Perry was apparently no longer the warden when Plaintiff was first
attacked. It seems like there is a disconnect between Perry and the allegations insofar as
Perry was not the warden when any of the events in the Complaint occurred. Thus,
Plaintiff has not stated a claim in this regard.
F.
Plaintiff’s “Amended Complaint”
Additionally, Plaintiff has filed a document, titled “Amended Complaint” [Doc.
51]. “As a general rule, an amended complaint supersedes and replaces the original
complaint unless the amendment specifically refers to or adopts the earlier pleading.”
Varnes v. Local 91, Glass Bottle Blowers Ass’n of U.S. & Canada, 674 F.2d 1365, 1370 n.6
(11th Cir. 1982). Once the district court accepts the amended pleading, “‘the original
pleading is abandoned by the amendment, and is no longer a part of the pleader’s
averments against his adversary.’” Pintando v. Miami-Dade Housing Agency, 501 F.3d
1241, 1243 (11th Cir. 2007) (quoting Dresdner Bank AG, Dresdner Bank AG in Hamburg v.
M/V OLYMPIA VOYAGER, 463 F.3d 1210, 1215 (11th Cir. 2006)). While the courts
liberally construe the filings of pro se plaintiffs, the Supreme Court has stated that it
“never suggested that procedural rules in ordinary civil litigation should be interpreted
so as to excuse mistakes by those who proceed without counsel.” McNeil v. United
States, 508 U.S. 106, 113 (1993).
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Here, Plaintiff’s Amended Complaint didn’t specifically refer to or adopt his
original pleading. As a result, the Court could accept the Amended Complaint as the
operative pleading in this case and conclude that review is now limited to it alone. See
Schreane v. Middlebrooks, 522 F. App’x 845, 848 (11th Cir. 2013) (per curiam) (affirming a
district court’s dismissal of a case based on the amended complaint without addressing
claims raised in the original pleading where the plaintiff did not specifically refer to or
adopt the original pleading). However, as Plaintiff largely didn’t set forth any claims
from the original Complaint in the Amended Complaint, it seems highly unlikely that
this is the result that Plaintiff intended.
It is more likely that Plaintiff intended for the Court to treat his amendment as a
supplement to the original Complaint. Any such supplement requires Plaintiff to obtain
leave of the Court, see Fed. R. Civ. P. 15(d) (providing that the Court may “permit a
party to serve a supplemental pleading setting out any transaction, occurrence, or event
that happened after the date of the pleading to be supplemented”), and Plaintiff has not
moved for leave to supplement his Complaint. Regardless, the Court construes his
Amended Complaint as a Motion to Supplement, and DENIES it for the reasons set
forth below.
At the outset, in his statement of facts, Plaintiff makes broad allegations of
conspiracy and refers the Court to “evidence of facts for conditions of confinement and
failure to protect attached hereto but submitted as a separate filing.” [Doc. 51, p. 2]. The
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attachments include a Letter to Commissioner Ward [Doc. 51-1] asserting that officials
retaliate against him by refusing his grievances, failing to answer his grievances in a
timely manner, and automatically denying his grievances without a legitimate reason.
See [Doc. 51-1]. Plaintiff has also attached a Statement [Doc. 51-4] with allegations that
Dr. Cowens failed to provide him adequate medical care, officials retaliate against him
in various ways, the prison is improperly ventilated which has caused him to develop
chronic microvascular ischemic white matter disease, he is not provided cleaning
chemicals, the water is contaminated, and Knight and Brown used excessive force
against him. [Doc. 51-4, pp. 1–5]. Some of these allegations relate to claims from the
original Complaint and others appear to be new. See [id.]. Plaintiff also attached a
Declaration [Doc. 51-5] asserting that a nurse refused to provide him with a “no miss”
medication and that another inmate set a fire in his cell in April 2022. See [Doc. 51-5]. In
the Amended Complaint itself, Plaintiff alleges that Defendants conspired to have him
killed. [Doc. 51, p. 2]. Plaintiff refers to an incident in which another inmate, who was
involved in an earlier attack on Plaintiff, tried to attack Plaintiff again. [Id. at pp. 2-3].
Plaintiff has discussed this incident in other filings. In the Amended Complaint, he
refers to the incident but does not discuss it with particular detail. See [id.].
Plaintiff goes on to assert that on April 12, 2022, Nurse Valentine refused to give
Plaintiff a “no miss” dose of his Hepatitis C medication. [Id. at p. 3]. Plaintiff also asserts
that Lachaka McKenzie, a deputy warden of care and treatment, retaliated against him
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because he exposed her for making an untrue statement in a different case. [Id. at pp. 3–
4]. Plaintiff mentions McKenzie returning a grievance to him that he had marked as an
emergency. [Id. at p. 3]. He asserts that McKenzie is involved in medical decisions, that
she shows favoritism towards members of the Good Fellas gang, and that she conspired
with Nurse Valentine regarding the missed medication. [Id. at pp. 3–4].
With regard to the missed medication, Plaintiff asserts that missing the dose
meant that he would have to start the treatment over entirely, but he provides no
specific information as to what happened when he did not receive the medication. [Id.
at p. 4]. Plaintiff further alleges that Defendant Knight promised to starve Plaintiff and
that he has done so, causing Plaintiff to lose twelve pounds since Plaintiff filed this case.
See [Doc. 51-5]. Plaintiff does not provide specific details regarding his allegations that
Knight is trying to starve Plaintiff. See [id.].
Plaintiff’s allegations in his “Amended Complaint” and attachments are
somewhat akin to a shotgun pleading. In particular, Plaintiff alleges various different
claims with few to no supporting factual allegations explaining what has actually
happened. For example, as noted herein, Plaintiff alleges that Defendant Knight is
attempting to starve Plaintiff, but he provides no information regarding the manner in
which Knight is allegedly doing so other than a general allegation that Knight has had
his colleagues withhold food from Plaintiff “at select intervals.” See [id. at p. 4]. The
Court cannot evaluate this claim because Plaintiff has not provided information
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regarding who Knight delegated to withhold food, how much food is being withheld,
or how often Plaintiff is not receiving food. Plaintiff’s general allegations that food has
been withheld from him at times and that he has lost weight do not demonstrate that
Knight has actually violated Plaintiff’s constitutional rights.
Furthermore, Plaintiff appears to add claims that are not appropriately joined in
this case. Rule 20(a)(2) of the Federal Rules of Civil Procedure permits joinder of
defendants only when the right to relief asserted arises “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.” Here, Plaintiff includes a claim
against Nurse Valentine and Deputy Warden McKenzie for refusing him medication on
one occasion. Plaintiff’s only allegations linking this claim to anything else in this case
are his wholly conclusory allegations that these individuals acted in retaliation and
conspired with other Defendants. These conclusory statements are not sufficient to
show that any conspiracy occurred, and Plaintiff hasn’t supported them with specific
facts. Thus, the Court DENIES Plaintiff’s construed Motion to Supplement.
The Court has considered Plaintiff’s repetitive and excessive filings in detail and
found many of them to include factual allegations against individuals that weren’t set
forth in the original Complaint. The Court stresses that it will not act as counsel for
Plaintiff and pull allegations from his original Complaint, the “Amended Complaint”
filing, the four sets of Objections, and other relevant filings into one single pleading on
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his behalf. See Lampkin-Asam v. Volusia Cnty. Sch. Bd., 261 F. App’x 274, 276–77 (11th Cir.
2008). Nor will it not accept Plaintiff’s practice of having multiple documents in a
lawsuit that could be considered “pleadings.” See Fed. R. Civ. P. 7.
To that end, the Court GRANTS Plaintiff limited 4 leave to file an amended
complaint that complies with the Federal Rules of Civil Procedure. The newly amended
complaint must not assert claims that the Court has already dismissed upon its
preliminary review. However, if Plaintiff chooses to take advantage of this opportunity,
he must submit an amended complaint that clearly outlines his claims against
Defendants. This requires Plaintiff to list each defendant and then, under each
defendant’s name, list numbered responses to these specific questions.
(1) What did this defendant do (or not do) to violate your rights?
(2) When and where did each action occur (to the extent memory allows)?
(3) How were you injured as a result of this defendant’s actions or decisions?
(4) What relief do you seek as to this defendant?
In other words, Plaintiff’s amended complaint must “specify which defendants
were responsible for each alleged act or omission and which defendants correspond to
each claim.” Wells v. Royal Caribbean Int’l Cruises Ltd., No. 20-13378, 2021 WL 3047173, at
*1 (11th Cir. July 20, 2021). Plaintiff should state his claims as simply as possible and
need not use formal language or legalese, nor is he required to cite any specific statute
Because the Court has taken considerable time to review Plaintiff’s Objections to the recommended
dismissal of his substantive claims, it will not simply allow Plaintiff to reassert such claims in an
amended complaint.
4
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or case law to state a claim. See Fed. R. Civ. P. 8. His amended complaint must not be
longer than 25 pages total, and it must not include any exhibits or other attachments. If
Plaintiff wants to amend his complaint beyond the amendment that the Court is
allowing herein, he must file a motion for leave to amend and a proposed amended
complaint.
G.
Motions for Injunctive Relief
A temporary restraining order (“TRO”) or preliminary injunction is a drastic
remedy used primarily to preserve the status quo rather than to grant most or all of the
substantive relief sought in the complaint. See, e.g., Cate v. Oldham, 707 F.2d 1176, 1185
(11th Cir. 1983); Fernandez-Roque v. Smith, 671 F.2d 426, 429 (11th Cir. 1982). 5 Factors a
movant must show to be entitled to a TRO include: “(1) a substantial likelihood of
ultimate success on the merits; (2) the TRO is necessary to prevent irreparable injury; (3)
the threatened injury outweighs the harm the TRO would inflict on the non-movant;
and (4) the TRO would serve the public interest.” Ingram v. Ault, 50 F.3d 898, 900 (11th
Cir. 1995) (per curiam).
1.
Pre-Recommendation Motions
Prior to entry of the O&R, Plaintiff filed four separate motions seeking injunctive
relief. See [Doc. 4]; [Doc. 5]; [Doc. 9]; [Doc. 10]. In two motions, Plaintiff seeks medical
The standard for obtaining a temporary restraining order is the same as the standard for obtaining a
preliminary injunction. See Parker v. State Bd. of Pardons & Paroles, 275 F.3d 1032, 1034-35 (11th Cir. 2001)
(per curiam); Windsor v. United States, 379 F. App’x 912, 916-17 (11th Cir. 2010) (per curiam).
5
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care in regard to an attack against Plaintiff that occurred on November 26, 2021—an
incident discussed in Plaintiff’s Complaint. [Doc. 4]; [Doc. 10]. In the other two motions,
Plaintiff seeks to have Defendants designate members of the Good Fellas gang as a
security threat group because the gang is responsible for violence throughout Macon
State Prison.6 [Doc. 5]; [Doc. 9]. The Magistrate Judge recommended that all four
motions be denied because Plaintiff had not met the criteria for a preliminary injunction
or temporary restraining order. [Doc. 11, pp. 43–47].
In his first set of Objections, Plaintiff alleges many new facts regarding his health.
For example, Plaintiff alleges that on March 15, 2020, Dr. Cowens found something
abnormal on his MRI scan and referred him to a neurologist. [Doc. 32, p. 1]. Plaintiff
also states that he filed a complaint against Dr. Cowens (who Plaintiff believes is a
homosexual) for sexually harassing him by making “inappropriate comments and
perverted assessments” of him. [Id.].
At his medical appointment, Plaintiff claims that Captain Hudson and
Lieutenant Hatcher were present in the medical hallway. [Id. at p. 2]. Members of the
Good Fellas gang were also in the vicinity for medical appointments. [Id.]. Hudson said
to Plaintiff, “I heard you’ve become a troublemaker for us.” [Id.]. Plaintiff asserts that
This is yet another example of how Plaintiff’s filings present redundant issues and clog up the docket in
this case. Since the Magistrate Judge entered the Order and Recommendation, Plaintiff has filed four
additional motions seeking similar relief, which are discussed below.
6
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Hudson made that comment in reference to this case. [Id.]. He contends that Hudson
knew about this case because Defendants illegally read Plaintiff’s mail. [Id.].
Additionally, Plaintiff argues injunctive relief is necessary because there is gang
violence in the prison, and a member of the CERT unit was stabbed on March 10, 2022.
[Id.].
Then, seemingly unrelatedly, Plaintiff takes issue with the following statement in
the Magistrate Judge’s O&R: “Initially, officials filled out an incident report falsely
stating that Plaintiff had been moved to segregation for refusing housing.” [Id.]. He
argues that he attached exhibits to his Complaint which support his allegations. [Id.].
Beyond this argument, Plaintiff does not explain his issue with this statement. To
provide context, the Magistrate Judge’s statement refers to Plaintiff’s allegation that:
GDC officials forged plaintiff’s incident initially and erroneously stated in
documentation on the ‘segregation tier-1 program appeal form’ . . . that
plaintiff left population for ‘refusing housing,’ when in fact Lt. Whitehead
and Lt. John Doe who escorted plaintiff to tier-1 saw the physical condition
plaintiff was in and bleeding.
[Doc. 1, p. 11]. The Magistrate Judge’s statement merely paraphrases Plaintiff’s own
allegations.
Plaintiff’s objections do not point to flaws in the Magistrate Judge’s reasoning.
Instead, they largely add new facts. Regardless, this Court has conducted a de novo
review of the motions for injunctive relief and the Magistrate Judge’s recommendations.
On that review, the Court now ADOPTS that portion of the O&R denying Plaintiff’s
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first four motions for injunctive relief. Accordingly, the Court DENIES Plaintiff’s
Emergency Motion to be Administered Medical Care [Doc. 4], his Motion for a
Preliminary Injunction [Doc. 5], Emergency Motion to Compel Defendants to
Permanently Invoke Security Threat Group Lock-Down Status [Doc. 9], and second
Motion for Medical Care [Doc. 10].
2.
Post-Recommendation Motions
Following entry of the O&R, Plaintiff filed an Amended Motion for Preliminary
Injunction [Doc. 31], a Motion for Temporary Restraining Order and/or Preliminary
Injunction [Doc. 36], a Motion for Protective Order [Doc. 48], a Motion for Defendants to
Cease Retaliation [Doc. 50], and a Motion to Renew Prior Motions [Doc. 52]. As
discussed above, Plaintiff’s repeated motions seeking the same or similar relief are
improper, and they inhibit the Court’s review of this case. Although these motions are
addressed herein, the Court cautions Plaintiff that it may impose sanctions if he
continues to improperly submit repetitive and excessive filings.
a.
Amended Motion for Preliminary Injunction
In Plaintiff’s Amended Motion for a Preliminary Injunction, he asserts that
Commissioner Ward, Warden Smith, and Deputy Warden of Security Sales are
responsible for Plaintiff’s safety, as well as the safety of all prisoners in Macon State
Prison. [Doc. 31, p. 1]. In particular, Plaintiff alleges that Ward has the authority to
invoke a security threat group lockdown. [Id.]. Apparently, on March 7, 2022, Smith,
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Sales, and Cross issued “tacit commands to disciplinary investigator staff member COII
Davis,” who came to Plaintiff’s building and walked around with “Plaintiff’s assailant”
investigating prisoners who had received disciplinary reports. [Id.].
Plaintiff alleges that “rogue prison officials and defendants” retaliate against him
because they know who attacked Plaintiff and continue to expose him to the attacker.
[Id. at pp. 1–2]. Additionally, these “rogue staff members and defendants” conspire with
and take bribes from the Good Fellas gang members. [Id. at p. 2]. Defendants also
expose Plaintiff to harm from other inmates who carry knives. [Id.]. Moreover, Cross
and other staff members also carry knives. [Id.]. Plaintiff notes that, on February 25,
2022, an “Islamic extremist and blood gang carried out a mini riot” in part of the prison.
[Id.].
Based on allegations of a high-level of violence at the prison, Plaintiff moves for a
preliminary injunction. [Id.]. He asserts that prisoners’ medical records and the number
of hospitalizations show the high-level of violence. [Id. at p. 3]. He contends that
Defendants cannot ensure his safety and the Court should require Commissioner Ward
to place Plaintiff’s assailants, the Good Fellas gang members, and all other security
threat groups on a permanent lockdown. [Id. at pp. 3–4]. He also asserts that Smith and
Sales use their positions to promote other corrupt officials. [Id. at p. 4].
In support, Plaintiff cites to cases that generally do not involve preliminary
injunctive relief. Some of the cases address whether a plaintiff has stated a claim or
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whether a party was entitled to summary judgment. See, e.g., [Doc. 31, p. 3 (citing Marsh
v. Butler Cnty., 268 F.3d 1014 (11th Cir. 2001)]. And, those cases that do involve
injunctive relief relate to injunctions as part of a judgment based on extensive evidence
presented to the court, as opposed to preliminary injunctions. See [id. (citing LaMarca v.
Turner, 995 F.2d 1526 (11th Cir. 1993); Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974))]. At
this stage, Plaintiff’s evidence consists largely of his own affidavits and declarations. It
is not clear from the evidence that Plaintiff has a substantial likelihood of prevailing on
the merits of his claims.
Plaintiff’s allegations regarding the extent of the alleged violence and his
exposure to inmates who previously attacked him are somewhat troubling. However, it
is not clear whether preliminary injunctive relief is necessary to prevent irreparable
harm to Plaintiff. In this regard, Plaintiff doesn’t identify any events where he has
suffered injury since an attack in November 2021. At most, Plaintiff alleges that one of
his attackers approached him with an intent to cause harm, but the guards intervened
and prevented the would-be attacker from harming him.
Moreover, the Court affords prison administrators, “wide-ranging deference in
the adoption and execution of policies and practices that in their judgment are needed
to preserve internal order and discipline and to maintain institutional security.” Bell v.
Wolfish, 441 U.S. 520, 547 (1979). For the Court to order Defendants to classify prisoners
in certain ways or to impose particular restrictions on prisoners at this stage of the
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proceeding would be completely at odds with this deference. In this regard, Plaintiff
has not shown that the threatened injury to him outweighs the potential harm or that
injunctive relief would serve the public interest. Accordingly, the Court DENIES
Plaintiff’s Amended Motion for a Preliminary Injunction [Doc. 31].
b.
Motion for Temporary Restraining Order
Plaintiff filed a second post-recommendation Motion for Temporary Restraining
Order or Preliminary Injunction. See [Doc. 36]. Once again, Plaintiff contends that he is
in imminent danger due to the high rate of inmate-on-inmate killings in Macon State
Prison, which occur in both general population and segregated housing units. [Id. at pp.
1–2]. In support of this contention, Plaintiff states that Smith, Sales, and Cross removed
him from his assigned building for an attorney phone call, and they exposed him to one
of his assailants from the attack in November 2022. [Id. at p. 1]. Apparently, Plaintiff’s
former assailant, Corey Miller, was on work detail in the building where the guards
took him for the phone call. [Id. at p. 2]. Plaintiff asserts that he “confronted Miller,” and
Miller produced a homemade knife [Id.]. Plaintiff then went outside to where Cross was
located. [Id.]. Cross gave Plaintiff the telephone and walked back to the staff office with
Plaintiff. [Id.]. After Cross left the building, Miller and two other inmates came into the
room where Plaintiff was speaking to his attorneys. [Id.]. At that point, Plaintiff told his
lawyers what was happening, and a guard ran into the building and escorted the three
men away from Plaintiff. [Id. at p. 3].
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Plaintiff filed an emergency grievance about the incident. [Id.]. Plaintiff reiterates
that the rampant violence at Macon State Prison puts him at risk of harm and injunctive
relief is necessary to prevent Defendants from being deliberately indifferent to the
violence or from retaliating against him. [Id.]. In support, he notes that the prison is
understaffed, and inmates have knives and other weapons available to them. [Id.]. He
alleges that Defendants know the identities of his assailants because the incidents
occurred on surveillance cameras and he has filed grievances about them. [Id. at p. 4].
Based on these allegations, Plaintiff asserts that Defendants violated his Eighth
Amendment rights, which amounts to irreparable harm. [Id.]. He also argues that the
potential harm to him outweighs any potential harm to Defendants from injunctive
relief, he is likely to succeed on the merits because Defendants serve him improper food
and retaliate against him, and the relief sought will serve the public interest because
“[i]t is always in the public interest for prison officials to obey the law.” [Id. at pp. 4–6.]
Plaintiff asserts that, in the absence of an order, Defendants will continue to subject him
to retaliation and harm. [Id. at p. 7].
This second Motion is substantially similar to the one filed before it. Once again,
it is not clear at this early stage of the proceeding whether Plaintiff has a substantial
likelihood of prevailing on the merits. Moreover, while it is concerning that Cross
apparently left Plaintiff alone and exposed to his former assailant, Plaintiff also asserts
that a guard promptly rushed in and escorted the potential assailants away. Therefore,
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the allegations thus far don’t show that a drastic remedy such as injunctive relief is
necessary to prevent harm. And, once again, Plaintiff is asking the Court to interfere
with decisions by prison officials without having the benefit of the full evidence in this
case, which suggests that a preliminary injunction would not be in the public interest. In
light of the above, this second post-Recommendation Motion for Temporary
Restraining Order or Preliminary Injunction [Doc. 36] is also DENIED.
c.
Motion for Protective Order
In Plaintiff’s Motion for Protective Order, he once again asserts that that he is in
imminent danger from retaliatory conduct by Defendants. See generally [Doc. 48]. The
subject of the Motion focuses on Plaintiff’s allegation that Smith, Sales, Knight, Cross,
and Ward are aware that Corey Miller attacked Plaintiff in November 2021, and that
Miller was involved in the February 24, 2022, incident. [Id. at p. 1]. Plaintiff asserts that
Defendants nonetheless allow Miller to be in Plaintiff’s direct presence. [Id.]. For
example, Plaintiff asserts that Miller works in the building where Plaintiff is now
assigned. [Id. at p. 2].
On April 13, 2022, Defendants took Plaintiff into an unsecured room for another
attorney phone call. [Id.]. Plaintiff alleges that his life was in danger because he was
handcuffed in Miller’s presence. [Id.]. Defendants also allow Miller to taunt and
threaten Plaintiff, as well as to dispense Plaintiff’s food. [Id.].
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Plaintiff asserts that Defendants responsible for security intentionally retaliate
against him. [Id. at p. 3]. Cross and Knight verbally antagonize Plaintiff. [Id.]. Other
Defendants deny him legal supplies. [Id.]. Knight and Cross allow Miller “to do what he
wants (i.e., breaking . . . rules and policies)” while denying Plaintiff access to the prison
telephone. [Id.]. They also allow Miller to “assist in picking up outgoing mail in order to
impede [his] legal mail.” [Id.]. Plaintiff seeks an order requiring Ward, Smith, and Sales
to protect Plaintiff from Miller. [Id.].
Considering Plaintiff’s various other filings for injunctive relief, the Court
concludes that this Motion is largely redundant and differs only in that it is more
focused on Plaintiff’s interactions with Miller. As with the other filings, it is not yet clear
whether Plaintiff has a likelihood of success on the merits and Plaintiff has not shown
that injunctive relief is necessary to prevent irreparable harm, outweighs the potential
harm to Defendants, or would be in the public interest. Therefore, this Motion [Doc. 48]
is also DENIED.
d.
Motion for Defendants to Cease Retaliation
Plaintiff moves the Court to order Defendants to stop retaliating against him.
[Doc. 50]. He claims that he has already presented evidence of Defendants’ retaliatory
actions by denying him legal supplies. [Id. at p. 1]. However, in this filing, he alleges
additional retaliatory actions. For example, Plaintiff contends that on April 4, 2022,
Smith, Sales, and “their agents” moved Plaintiff from his previous building to a new
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building. [Id.]. Plaintiff notes that his assailants from the November 2022 attack have
never been punished and that Corey Miller works in the building where Plaintiff has
been transferred. [Id.]. Plaintiff asserts that this situation subjects him to “further
physical harm.” [Id.]. Moreover, Miller and other prisoners pick up Plaintiff’s outgoing
legal mail and pass out meals unsupervised. [Id.].
Plaintiff alleges that Miller previously threatened to kill Plaintiff but the
“defendants continue to allow Miller to gain access through secured areas of the
prison.” [Id.]. Defendants also deny Plaintiff three weekly showers, instead allowing
him no more than one shower per week. [Id.]. Plaintiff contends that Defendants let
Miller “tamper with Plaintiff’s meals,” noting that Knight is acting on a threat to starve
Plaintiff. [Id.]. On this point, Plaintiff asserts that he receives trays with missing food,
“unsanitary objects, bodily fluids, and other harmful objects” placed on them. [Id.].
Plaintiff asserts that inmates place these items on his tray in “blind spots off the
[building’s] cameras” on “tacit commands from defendants.” [Id.]. Plaintiff does not
identify any particular incident in this regard, but instead, makes only general
allegations. See [id.].
Plaintiff asserts that he has the right to shower, be free from mail impediments,
and have access to legal supplies and a law library. [Id. at p. 2]. According to Plaintiff,
“[p]rison staff manipulate law library records to deny” him research materials,
inhibiting his ability to research this case. [Id.]. He also says that, since Smith and Sales
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moved him to his new building, he is “in the direct presence of defendants Knight,
Cross, and Brown,” who oversee the building. [Id.]. Plaintiff believes that Ms. Brown,
who works in the law library, may be related to Defendant Brown. [Id.].
Plaintiff contends that, in December 2021, Cross allowed another inmate’s
cellmate to steal all of that inmate’s property and then refused to allow the inmate back
into the cell. [Id.]. It appears from Plaintiff’s allegations that the staff may have then
moved the inmate to Plaintiff’s cell, but this is not entirely clear. See [id.]. Regardless,
Plaintiff further alleges that staff also took the inmate off of his mental health
medications, which could cause him to become violent toward staff or Plaintiff. [Id.].
Plaintiff asks the Court to order Defendants to stop retaliating against him. [Id. at
p. 3]. Plaintiff’s allegations that any particular action are taken in retaliation are
somewhat speculative, as Plaintiff does not set forth facts showing that any actions by
Defendants are actually related to Plaintiff having filed grievances or lawsuits.
Regardless, it is not clear at this time whether Plaintiff will ultimately be successful in
this action. Moreover, Plaintiff’s allegations again do not show that an order for
Defendants to “cease retaliation” is necessary to prevent harm, would outweigh any
potential harm, and would be in the public interest. At this stage of the proceeding, the
Court will not exercise the drastic remedy of imposing injunctive relief, and thus, this
Motion [Doc. 50] is also DENIED.
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e.
Motion to Renew Prior Motions
Plaintiff moves to renew his first pre-Recommendation Motion for Preliminary
Injunction and his Motion to Compel Defendants to Complete & Return the Informa
Pauperis Documents “after the magistrate [judge] denied [them].” [Doc. 52, p. 1]. He
states that he “has submitted additional evidence to the Court on the issues raised in
those two motions[]” and seeks this Court’s review. [Id.].
To start, the Magistrate Judge did not deny either of the motions at issue. In fact,
both motions are pending before this Court. In his O&R, the Magistrate Judge
recommended that the motions be denied, but he did not issue a definitive ruling on
them. This Court is the one that ultimately decides whether to adopt the Magistrate
Judge’s recommendations.
In light of the fact that Plaintiff objected to the recommended denials, the Court
conducted a de novo review of those motions. Its review is very clearly set forth above.
Therefore, to the extent that Plaintiff sought review of those motions before their denial,
it appears he got such a review. Accordingly, in light of the rulings set forth in this
Order on Plaintiff’s pre-Recommendation Motion for Preliminary Injunction and his
Motion to Compel Defendants to Complete & Return the Informa Pauperis Documents,
the Court DENIES Plaintiff’s Motion to Renew Prior Motions [Doc. 51] as moot.
CONCLUSION
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For the reasons discussed above, the Court DENIES Plaintiff’s Motion for
Proceedings to Go Directly Before the District Judge [Doc. 8] and his Motions to
Appoint Counsel [Doc. 38]; [Doc. 41]. The Court also DENIES IN PART Plaintiff’s
Motion for a Subpoena Duces Tecum [Doc. 49] to the extent that it asks the Court to
subpoena certain evidence but GRANTS IN PART the Motion to the extent that it seeks
blank subpoena forms. To that end, the CLERK is DIRECTED to forward Plaintiff five
signed but otherwise blank subpoena forms pursuant to Fed. R. Civ. P. 45(a)(3).
Next, with regard to the various pieces of evidence that Plaintiff has filed, the
Court cautions Plaintiff not to file discovery-related evidence directly on the docket and
notes that it is not considering the various affidavits, declarations, and other evidence
submitted to date. Any discovery-related evidence that Plaintiff wants the Court to
consider must be submitted at the appropriate time and in the appropriate manner.
Turning to Plaintiff’s four sets of Objections to the Magistrate Judge’s
recommendations, the Court overrules each one. Accordingly, the Court ADOPTS the
conclusions set forth in the O&R and DISMISSES without prejudice Plaintiff’s
deliberate indifference to safety claim against Commissioner Ward; his deliberate
indifference to safety claims against Unit Manager Knight, Warden Smith, Deputy
Wardens Sales and Eady, Sergeant Tullis, and Officer Cross; his deliberate indifference
to safety claim against his cellmate; his deliberate indifference to a serious medical need
claim regarding skin issues; his deliberate indifference to a serious medical need claim
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regarding a contaminated cell; his deliberate indifference to a serious medical need
claim regarding smoke inhalation; his conditions of confinement claims regarding the
failure to comply with Covid-19 safety protocols; his claims against Counselor Williams
and Boyle based on their refusal to accept grievances; his claim against Commissioner
Ward based on the two-grievance limit; his claims against Warden Smith based on the
failure to stock legal pads and timely announce mail; his diet-related claims; and all
claims against Officer Cross and Clinton Perry.
As to Plaintiff’s “Amended Complaint”, the Court construes it as a motion to
supplement and DENIES the Motion. However, if Plaintiff wants to amend his
complaint to add factual allegations, Plaintiff is GRANTED limited leave to amend his
complaint consistent with the instructions set forth above. Plaintiff shall have 14 DAYS
from the date of this Order to file an amended complaint.
Finally, the Court ADOPTS that portion of the O&R denying Plaintiff’s motions
seeking injunctive relief and therefore DENIES Plaintiff’s Emergency Motion to be
Administered Medical Care [Doc. 4], Motion for Preliminary Injunction [Doc. 5],
Emergency Motion to Compel Defendants to Permanently Invoke Security Threat
Group Lock-Down Status [Doc. 9], and his second Motion for Medical Care [Doc. 10].
Likewise, the Court DENIES Plaintiff’s newly filed motions seeking such relief, i.e., his
Amended Motion for Preliminary Injunction [Doc. 31], Motion for Temporary
Restraining Order [Doc. 36], Motion for Protective Order [Doc. 48]; and Motion for
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Defendants to Cease Retaliation [Doc. 50]. And finally, the Court DENIES
Plaintiff’s Motion to Renew Prior Motions [Doc. 52] as moot.
SO ORDERED, this 10th day of May, 2022.
S/ Tilman E. Self, III
TILMAN E. SELF, III, JUDGE
UNITED STATES DISTRICT COURT
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