GOMEZ v. ALLEN et al
ORDER adopting the 56 Report and Recommendation; granting 36 Motion to Dismiss Complaint; denying as moot Plaintiff's 60 Motion for Evidentiary Hearing and 64 Motion to Instruct the U.S. Marshals Service to Serve Process on Anthony Tyrone Jamess, Jr. and the Court strikes Plaintiff's amended complaint. Ordered by US DISTRICT JUDGE W LOUIS SANDS on 2/19/2016 (rlw)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
GUILLERMO WIDON GOMEZ,
CASE NO.: 7:15-CV-72 (WLS)
Before the Court is a January 11, 2016 Recommendation from United States Magistrate Judge Thomas Q. Langstaff as to Defendant Daniel Ray’s Motion to Dismiss. (Docs.
36, 56.) Also pending are Plaintiff Guillermo Widon Gomez’s Request for an Evidentiary
Hearing (Doc. 60), amended complaint (Doc. 61), which the Court construes as a motion for
leave to amend since it was filed after the twenty-one days Federal Rule of Civil Procedure
15(a) allows for an amendment as a matter of course, and Motion to Instruct the U.S. Marshals Service to Serve Process on Anthony Tyrone James, Jr., a defendant Gomez attempts
to add in his amended complaint (Doc. 64).
After receiving an extension of time in which to do so, Gomez filed timely objections
to Judge Langstaff’s January 11, 2016 Recommendation. (Doc. 59.)
In his objections,
Gomez incorporates the allegations in his amended complaint (Doc. 61). (Doc. 59 at 1.) The
objections and amended complaint both raise new allegations that Gomez requested an appeal form from Counselor Steele on two occasions and was told that his grievance was still
pending and was being sent to internal investigations. (Docs. 59 at 2; 61 at 5-6.) The amended complaint also names Anthony T. James, Jr. as a defendant and includes him in the allegations regarding Defendant Ray’s conduct. (See generally Doc. 61.) Although there is no Local
Rule or statute explicitly allowing for such, Defendant Ray filed a response to Gomez’s objections. (Doc. 62.) Ray also filed a response in opposition to Gomez’s amended complaint.
Gomez’s Amended Complaint (Doc. 61) and New Arguments Raised in His
Objections (Doc. 59)
The Court first addresses whether Gomez should be granted leave to amend and
whether it will consider the new arguments Gomez raises in his objections. Federal Rule of
Civil Procedure 15(a)(2) requires a party to seek the Court’s permission to amend its pleadings where more than twenty-one days have elapsed since service of the initial pleading and
where the opposing party has not provided written consent to the amendment. Rule 15(a)(2)
provides that courts should freely grant leave to amend “when justice so requires.” Fed. R.
Civ. P. 15. “[U]nless there is a substantial reason to deny leave to amend, the discretion of
the district court is not broad enough to permit denial.” Burger King Corp. v. Weaver, 169 F.3d
1310, 1319 (11th Cir. 1999) (quoting Dussouy v. Gulf Coast Investment Corp., 660 F.2d 594, 598
(5th Cir. 1981)). In other words, where a party seeks leave to amend before the deadline to
amend has elapsed, the Court must identify a substantial reason to justify denying the motion. Moore v. Baker, 989 F.2d 1129, 1131 (11th Cir. 1993). Substantial reasons include undue
delay, bad faith, dilatory motive, and futility of amendment. Foman v. Davis, 371 U.S. 178, 182
Here, no deadline to amend has been set because no scheduling and discovery order
has been entered yet. However, the Court has previously ordered Gomez to file an amended
complaint because the Court found that Gomez’s objections to a previous Recommendation
from Judge Langstaff made new allegations about Defendant Allen. (Doc. 35.) Because
Gomez’s objections made new allegations, the Court ordered Gomez to file an amended
complaint stating his claims against Defendant Allen no later than Friday, August 28, 2015.
Even though he requested and was given an extension of time to do so, Gomez never filed
an amended complaint stating his claims against Allen, and his claims against Defendant Allen were dismissed. (See Docket; Doc. 47.) The Court notes that Gomez’s previous leave to
amend extended into a time well after Defendant Ray filed his Motion to Dismiss, which put
Gomez on notice that Ray was asserting an exhaustion argument. (Docs. 35, 36, 41.)
Further, Gomez filed a response and sur-reply to Ray’s Motion to Dismiss, which
was based solely on Ray’s affirmative defense that Gomez failed to exhaust his administrative remedies; neither brief included Gomez’s new allegations that Counselor Steele essentially prevented him from filing an appeal, though Gomez was, by that point, on notice that
such allegations would be relevant to Ray’s exhaustion defense. (See Docs. 42, 46.) Nevertheless, Gomez did not make his new allegations or attempt to add James as a defendant until
after Judge Langstaff issued his Recommendation.
The Court recognizes its obligation to grant leave to amend freely. However, the
Court cannot allow a litigant –even a pro se prisoner –“to set [his] case in motion before the
magistrate, wait to see which way the wind was blowing, and—having received an unfavorable recommendation—shift gears before the district judge.” Williams v. McNeil, 557 F.3d
1287, 1291 (11th Cir. 2009) (quoting Paterson–Leitch Co. v. Mass. Muni. Wholesale Elec. Co., 840
F.2d 985, 991 (1st Cir.1988)). “[A] district court has discretion to decline to consider a party's
argument when that argument was not first presented to the magistrate judge.” Id. at 1292
(considering a case involving a pro se prisoner’s habeas corpus petition). The Court finds that
Gomez’s attempt to amend his complaint after Judge Langstaff issued his Recommendation
is dilatory because of the amount of time Gomez has been on notice of Ray’s exhaustion defense and the fact that Gomez was previously given leave to amend his complaint that he did
not take advantage of.
The Court further finds that Gomez’s amendment would be futile. Defendant Ray’s
argument that an amendment would be futile is based on a sworn affidavit from Counselor
Steele, submitted as an attachment to Ray’s response in opposition to Gomez’s objections to
the Recommendation, in which Steele states that there is no record of Gomez’s requesting
an appeal form from him in April 2015 and that if Gomez had requested an appeal form, he
would have given him one. (Doc. 62-1 at 4.) Ray contends that this affidavit would be sufficient to rebut the new allegations and further establish Ray’s affirmative defense of failure to
exhaust. (Doc. 63 at 4.)
Since exhaustion of administrative remedies is an affirmative defense, plaintiffs are
not required to plead exhaustion in their complaints. Jones v. Bock, 549 U.S. 199, 216-17
(2007). Rather, plaintiffs must rebut an exhaustion defense once it is raised. Gomez did not
do that here and cannot attempt to do so now that Judge Langstaff has made his Recommendation on the issue. (See Docs. 42, 46.) The Court also notes that Ray has submitted a
sworn affidavit from Counselor Steele stating that there is no record of Gomez’s requesting
an appeal form from him in April 2015 and that if Gomez had requested an appeal form, he
would have given him one. (Doc. 62-1 at 4.) Such evidence would rebut Gomez’s allegation
that he requested an appeal form from Steele and was not given one since Gomez has not
submitted a sworn complaint, affidavit, or other evidence that he in fact requested an appeal
form from Steele. The Court finds that this further supports its finding that Gomez’s
amendment would be futile.
Finally, the Court notes that Gomez’s amended complaint seeks to add as a defendant Anthony Tyrone James, Jr. (Doc. 61.) Gomez includes James, who he alleges is a correctional officer at the prison, in his allegations against Defendant Ray. (Id. at 4.) For all of the
reasons previously stated, the Court finds that Gomez’s amendment adding a new defendant
at this stage in the litigation is dilatory. The Court also finds that such an amendment would
be futile because Defendant Ray has submitted Gomez’s full grievance history, and there is
no indication that Gomez has exhausted a grievance related to Anthony Tyrone James, Jr.
(Docs. 36-3; 36-6.)
For those reasons, the Court declines to consider Gomez’s new allegations and arguments raised in his objection that were not previously raised in the briefs he filed regarding Ray’s Motion to Dismiss, and also declines to grant Gomez leave to amend his complaint
because Gomez has had ample opportunity to do so. The Court therefore STRIKES
Gomez’s amended complaint. (Doc. 61.) For that reason, the Court DENIES AS MOOT
Gomez’s Motion to Instruct the U.S. Marshals Service to Serve Process on Anthony Tyrone
James, Jr. (Doc. 64) because Anthony Tyrone James, Jr. is not a defendant in this case.
Judge Langstaff’s Recommendation (Doc. 56)
Gomez’s objections focus primarily on the new allegations and arguments that the
Court has already declined to consider. (See Doc. 59.) The Court agrees with Judge Langstaff’s findings that Gomez did not appeal his grievance as allowed for by the prison’s grievance policy either after the timeline for the warden’s response expired or after he received a
response on May 21, 2015 and therefore did not exhaust the administrative remedies available to him. (Doc. 56 at 5-6.) The Court further finds that Gomez’s objections, other than the
new arguments the Court herein declines to consider, do not raise any arguments or point to
any facts establishing that he did, in fact, exhaust his administrative remedies or that his
claims against Defendant Ray should not be dismissed on that basis. (See generally Doc. 59.)
The Court notes that, in his objections, Gomez cites cases holding that “the failure of
prison officials to act on a grievance in accordance with the guidelines announced in their
own operating procedures sustains a finding of exhaustion under the PLRA.” (Doc. 59 (citing, e.g., Daker v. Ferrero, 2004 WL 5459957 at *2 (N.D. Ga. Nov. 24, 2004)). However, in
these cases, no other administrative procedures were available –either procedurally or practically due to prison officials’ obstruction of the grievance process –once the prison officials’
response deadline had elapsed. E.g., Daker, 2004 WL 5459957 at *3; Hambrick v. Morton, 2009
WL 175964 at *2-3 (S.D. Ga. June 19, 2009). The Supreme Court has held, “[A]n institution's requirements define what is considered exhaustion.” Jones, 549 U.S. at 218. Here, Valdosta State Prison’s grievance allowed Gomez to file an appeal as soon as the warden’s response deadline elapsed or after he received an untimely response from the warden. (Doc.
36-4 at 11-12.) Therefore, as soon as the warden’s response deadline elapsed on April 11,
2015, Gomez had another administrative procedure available to him –the ability to file an
appeal. Gomez did not exhaust this procedure, and the Court has already declined to consider his new allegations that he was prevented from filing an appeal.
Therefore, upon full review and consideration of the record, the Court finds that
Judge Langstaff’s January 11, 2016 Recommendation (Doc. 56) should be, and hereby is,
ACCEPTED, ADOPTED and made the Order of this Court for reason of the findings
made and reasons stated therein and for reason of the findings made and reasons stated
herein. Gomez’s objections to the Recommendation (Doc. 59) are OVERRULED. Defendant Ray’s Motion to Dismiss (Doc. 36) is GRANTED and all claims against Defendant
Ray are DISMISSED WITHOUT PREJUDICE under 28 U.S.C. § 1997e and §
1915A(b)(1). The Court also STRIKES Gomez’s amended complaint (Doc. 61) and DENIES AS MOOT Gomez’s Motion to Instruct the U.S. Marshals Service to Serve Process
on Anthony Tyrone James, Jr. (Doc. 64). Finally, Gomez’s Motion for an Evidentiary Hearing (Doc. 60) is DENIED AS MOOT.
SO ORDERED, this 19th day of February, 2016.
/s/ W. Louis Sands______________________
W. LOUIS SANDS, SR. JUDGE
UNITED STATES DISTRICT COURT
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