Chipman v. Conway et al

Filing 22

ORDER AND OPINION adopting the 17 Magistrate's Report and Recommendations as the opinion of the Court and denying 4 Plaintiff's motion for preliminary injunction and TRO. Plaintiffs motion to amend the complaint 21 is granted, such th at the instant action shall proceed on Plaintiffs First and Fourteenth Amendment free exercise and equal protection claims. Plaintiffs motion for appointment of counsel 20 is denied. The Clerk is directed to send USM 285 forms and summons for all d efendants. Plaintiff is directed to complete service forms and return to Clerk within 20 days from entry date of this Order. The Clerk is directed to resubmit if Plaintiff fails to comply. Upon receipt of forms, the Clerk is DIRECTED to prepare a se rvice waiver package for each Defendant. In the event a Defendant does not return the Waiver of Service form to the Clerk of Court within 35 days following the date the service waiver package was mailed, the Clerk is DIRECTED to prepare and transmit to the U.S. Marshal's Service a service package for each Defendant who failed to waive service. Signed by Judge Leigh Martin May on 2/24/16. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

DARREN JAMAINE CHIPMAN,
Inmate No. 99449886,

PRISONER CIVIL RIGHTS

Plaintiff,

42 U.S.C. § 1983

v.

CIVIL ACTION NO.
1: l 5-CV-2810-LMM-JSA

R.L. (BUTCH) CONWAY; MIKE
BOYD; DON PINKARD; J. NIX;
S. HAMILTON; LUCAS,
Defendants.
ORDER AND OPINION

The matter is before the Court on: (1) Plaintiffs letter, construed by the
Clerk as a motion for preliminary injunction and temporary restraining order
("TRO") [Doc. 4]; the Magistrate Judge's Report and Recommendation ("R&R"),
in which the Magistrate Judge recommends denying the motion for preliminary
injunction and TRO [Doc. 17]; (3) Plaintiffs objections [Doc. 19]; (4) Plaintiffs
motion to appoint counsel [Doc. 20]; and (5) Plaintiffs motion for an extension
of time to respond and to amend the complaint [Doc. 21].
I.

Procedural History
Plaintiff filed this pro

se

civil rights action on August 7, 2015, and

simultaneously filed the letter that the Clerk construed as a motion for preliminary

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injunction and TRO. (Docs. 1, 4). On October 28, 2015, Magistrate Judge Anand
issued a frivolity R&R, recommended that Plaintiff be allowed to proceed on
Religious Land Use and Institutionalized Persons Act ("RLUIPA") claims for
injunctive relief and on First and Fourteenth Amendment free exercise claims, but
that Plaintiffs claim for damages under RLUIPA be dismissed.

(Doc. 11).

Plaintiff did not file any objections to the R&R, and this Court adopted it on
November 17, 2015. (Doc. 14). The next day Magistrate Judge Anand issued a
service order instructing Plaintiff to complete service forms and return those forms
(Doc. 15).

to the Clerk within twenty (20) days.

As of February 23, 2016,

Plaintiff has not complied with those instructions.
On December 22, 2016, Magistrate Judge Anand entered another R&R, this
time recommending that Plaintiffs motion for a preliminary injunction and TRO
be denied. (Doc. 17). Thereafter, on January 4, 2016, Plaintiff filed a motion for
extension of time to respond, and objections, to the October 28, 2015, frivolity
R&R that this Court already had adopted.1

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(Docs. 19, 21).

At the same time

Although the docket indicates that Plaintiff was objecting to the R&R

recommending denial of the preliminary injunction and TRO, it is clear after
reviewing those objections that Plaintiff instead seeks to object to the frivolity
R&R. (Doc. 19).
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Plaintiff filed a motion to amend the complaint and a second motion to appoint
counsel. (Docs. 20, 21). Plaintiffs motion for an extension of time to respond to
the original R&R [Doc. 21] is hereby GRANTED nunc pro tune. The Court will
consider the response [Doc. 21], Petitioner's objections [Doc. 19], and Petitioner's
motion to amend [Doc. 21].
II.

Discussion
A.

Claims

Plaintiff complains that although Magistrate Judge Anand construed his
claims under RLUIPA, he does not wish to proceed under RLUIPA. (Doc. 19 at
1; Doc. 21 at 2). Plaintiff should be allowed to withdraw these claims.
Plaintiff also wishes to raise a claim for violation of his equal protection
rights. (Doc. 21 at 2). In the frivolity R&R, Magistrate Judge Anand mentioned
the Equal Protection Clause of the Fourteenth Amendment [see Doc. 11 at 7] and
discussed that,

inter alia,

Plaintiffs allegations that "although Christian inmates

are allowed to hold services twice a week, Muslim inmates only have held services
twice a month at most, and on wrong days[,]" stated "religious claims" under the
First and Fourteenth Amendments. (Doc. 11 at 10). Because Magistrate Judge

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Anand did not explicitly state that Plaintiff could proceed on an equal protection
claim, however, this Court will discuss the issue.
To state an equal protection claim, a prisoner must show that "he is
similarly situated with other prisoners who received more favorable treatment; and
his discriminatory treatment was based on some constitutionally protected
interest." See Jones v. Ray, 279 F.3d 944, 946-47 (11th Cir. 2001). Similar to
Plaintiffs free exercise claims, Plaintiff essentially argues that Muslim inmates
"are not afforded an opportunity to observe their faith comparable to that afforded
fellow inmates who adhere to different precepts[,]" see Saleem v. Evans, 866 F .2d
1313, 1317-18 (11th Cir. 1989), and because at this stage of the proceedings the
Court does not know what, if any, justification the Gwinnett County Jail might
provide for the difference, Plaintiff has stated an equal protection claim.
B.

Motion for Appointment of Counsel

Plaintiff also has filed a second motion to appoint counsel [Doc. 20].
Magistrate Judge Anand denied Plaintiffs first motion for appointment of counsel
[Doc. 3] after finding that the issues in this case are not overly complex. (Doc. 8).
Plaintiff provides almost the same reasons for seeking counsel as he did the first
time, that is, he is unable to afford counsel, the issues in this case are complex, he
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has limited access to the law library and limited knowledge of the law, and that the
trial in this case will involve conflicting testimony.

(Id.).

As nothing has

changed since Plaintiff's first motion for counsel was denied, this motion also
should be denied. As Magistrate Judge Anand indicated, however, "[i]f the Court
determines, at a later point in the proceedings, that Plaintiff requires appointed
counsel, it will sua sponte reconsider Plaintiff's request." (Doc. 8 at 3).
C.

Preliminary Injunction/TRO

Because Plaintiff's objections pertain solely to the frivolity R&R and
Plaintiff does not object to the R&R presently before the Court [Doc. 17], in
accordance with 28 U.S.C. § 636(b)(l) and Rule 72 of the Federal Rules of Civil
Procedure, the Court has reviewed the Magistrate Judge's R&R for clear error and
finds none.
III.

Conclusion
For the foregoing reasons,
The Court ADOPTS the Magistrate Judge's R&R [Doc. 17] as the opinion

of this Court. For the reasons stated in the Magistrate Judge's R&R, Plaintiff's
motion for preliminary injunction and TRO [Doc. 4] are DENIED.

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IT IS FURTHER ORDERED that Plaintiffs motion to amend the
complaint [Doc. 21] is GRANTED, such that the instant action shall proceed on
Plaintiffs First and Fourteenth Amendment free exercise and equal protection
claims.
IT IS FURTHER ORDERED that Plaintiffs motion for appointment of
counsel [Doc. 20] is DENIED.
IV.

Service
The Court shall provide Plaintiff with one more chance to comply with the

Magistrate Judge's service instructions set forth in his November 18, 2015, Order
[Doc. 15].

Specifically, the Clerk of Court is DIRECTED to send Plaintiff a

USM 285 form and summons for all Defendants.

Plaintiff is DIRECTED to

complete a USM 285 form and summons for each Defendant and return them to
the Clerk within twenty (20) days from the date this Order is entered. The Court
warns Plaintiff that failure to comply in a timely manner could result in the
dismissal of this action. The Clerk is DIRECTED to resubmit this action to the
undersigned if Plaintiff fails to comply.
Upon receipt of the forms, the Clerk is DIRECTED to prepare a service
waiver package for each Defendant. The service waiver package must include
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two (2) Notices of Lawsuit and Request for Waiver of Service of Summons
(prepared by the Clerk), two (2) Waiver of Service of Summons forms (prepared
by the Clerk), an envelope addressed to the Clerk with adequate first-class postage
for each Defendant's use in returning the waiver form, one (1) copy of the
complaint, and one (1) copy of this Order.
Upon completion of the service waiver package, the Clerk is DIRECTED
to complete the lower portion of the Notice of Lawsuit and Request for Waiver
form and mail the service waiver packages to each Defendant. Defendants have
a duty to avoid unnecessary costs of serving the summons. If any Defendant fails
to comply with the request for waiver of service, that Defendant must bear the
costs of personal service unless good cause can be shown for failure to return the
Waiver of Service form.
In the event that any Defendant does not return an executed Waiver of
Service form to the Clerk of Court within thirty-five (35) days following the date
the service waiver package is mailed, the Clerk is

DIRECTED

to prepare and

transmit to the U.S. Marshal's Service a service package for that Defendant. The
service package must include the USM 285 form, the summons, and one (1) copy
of the complaint. Upon receipt of the service package(s), the U.S. Marshal's
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Service is DIRECTED to personally serve that Defendant in accordance with the
requirements of Rules 4(i)(2)(A) and 4(i)(2)(B) of the Federal Rules of Civil
Procedure. The executed waiver form or the completed USM 285 form shall be
filed with the Clerk.
Plaintiff is DIRECTED to serve upon Defendants or their counsel a copy
of every additional pleading or other document which is filed with the Clerk of the
Court.

Each pleading or other document filed with the Clerk shall include a

certificate stating the date on which an accurate copy of that paper was mailed to
Defendants or their counsel.

This Court shall disregard any submitted papers

which have not been properly filed with the Clerk or which do not include a
certificate of service.
Plaintiff is also REQUIRED to KEEP the Court and Defendants advised
of his current address at all times during the pendency of this action. Plaintiff is
admonished that the failure to do so may result in the dismissal of this action.

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Finally, prisoner civil rights cases are assigned to a zero-month discovery
track. If any party determines that discovery is required, that party must, within
thirty days after the first appearance of a Defendant by answer, file a motion
requesting a discovery period.

IT IS SO ORDERED this 24st day of February, 2016.

UNITED STATES DISTRICT JUDGE

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