Johnson v. Grantham et al
Filing
14
OPINION AND ORDER adopting Magistrate Judge Justin S. Anand's Final Report and Recommendation 9 and dismissing Plaintiff's Amended Complaint 7 . It is further ordered that Plaintiff's First and Second Motions to Appoint Counsel [3, 11] are denied and Plaintiff's Motion for Leave to File an Amended Complaint 12 is denied. Signed by Judge William S. Duffey, Jr on 10/4/17. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
SPENCER JOHNSON SR.,
Inmate 1523215
Plaintiff,
v.
1:17-cv-2758-WSD
AMANDA GRANTHAM, Senior
Attorney, Public Defender’s Office,
SARINA WOODS, Supervising
Attorney, GA. PUBLIC DEFENDER
COUNCIL,
Defendants.
OPINION AND ORDER
This matter is before the Court on Magistrate Judge Justin S. Anand’s Final
Report and Recommendation [9] (“Final R&R”) recommending that this action be
dismissed for failure to state a claim under 28 U.S.C. § 1915A. Also before the
Court are Plaintiff’s Motions to Appoint Counsel [3, 11] and Plaintiff’s Motion for
Leave to File a Second Amended Complaint [12].
I.
BACKGROUND
On July 28, 2017, Plaintiff filed his First Amended Complaint [7] (“Am.
Compl.”),1 asserting various constitutional claims, including claims for ineffective
assistance of counsel against his appointed public defender, Amanda Grantham,
her supervisor, Sarina Woods, and the Georgia Public Defender Council
(“GPDC”).
On August 28, 2017, the Magistrate Judge screened Plaintiff’s Complaint
and issued his Final R&R, recommending that the action be dismissed under 28
U.S.C. § 1915A. No objections to the Final R&R were filed. On September 13,
2017, Plaintiff moved for a second time to appoint counsel [11] (“Second Motion
to Appoint”) and for leave to file a second amended complaint2 [12] (“Motion to
Amend”).
II.
LEGAL STANDARDS
A.
Frivolity Review Under 28 U.S.C. § 1915A
A federal court must screen “a complaint in a civil action in which a prisoner
1
Plaintiff filed his initial Complaint on July 20, 2017. Plaintiff’s First
Amended Complaint was properly filed under Fed R. Civ. P. 15(1)(A) permitting a
party to amend its pleading “once as a matter of course” within 21 days after
serving it. On July 20, 2017, Plaintiff also moved to appoint counsel [3] (“First
Motion to Appoint”).
2
Plaintiff filed his Second Amended Complaint with his Motion to Amend.
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seeks redress from a governmental entity or officer or employee of a governmental
entity.” 28 U.S.C. § 1915A(a). The Court is required to dismiss the complaint if it
is “frivolous, malicious, or fails to state a claim upon which relief may be granted,”
or if it “seeks monetary relief from a defendant who is immune from such relief.”
28 U.S.C. § 1915A(b). A claim is frivolous, and must be dismissed, where it
“lacks an arguable basis either in law or in fact.” Miller v. Donald, 541 F.3d 1091,
1100 (11th Cir. 2008).
Plaintiff filed his Complaint pro se. “A document filed pro se is to be
liberally construed, and a pro se complaint, however inartfully pleaded, must be
held to less stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007). Nevertheless, a pro se plaintiff must
comply with the threshold requirements of the Federal Rules of Civil Procedure.
See Beckwith v. Bellsouth Telecomms. Inc., 146 F. App’x 368, 371 (11th Cir.
2005). “Even though a pro se complaint should be construed liberally, a pro se
complaint still must state a claim upon which the Court can grant relief.”
Grigsby v. Thomas, 506 F. Supp. 2d 26, 28 (D.D.C. 2007). “[A] district court does
not have license to rewrite a deficient pleading.” Osahar v. U.S. Postal Serv.,
297 F. App’x 863, 864 (11th Cir. 2008).
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B.
Magistrate Judge’s Report and Recommendation
After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1);
Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982), cert. denied, 459 U.S.
1112 (1983). A district judge “shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1). With respect to those findings and
recommendations to which objections have not been asserted, the Court must
conduct a plain error review of the record. United States v. Slay, 714 F.2d 1093,
1095 (11th Cir. 1983), cert. denied, 464 U.S. 1050 (1984). Plaintiff did not file
objections to the Final R&R, and the Court thus reviews it for plain error.
III.
DISCUSSION
A.
Plaintiff’s § 1983 Claims
Plaintiff asserts § 1983 claims against Defendant Amanda Grantham
(“Grantham”), his appointed public defender, based on her alleged ineffective
representation of him in his state criminal case. (Am. Compl. at 5-7). Plaintiff
asserts Grantham failed to obtain necessary and relevant evidence, did not file a
motion for a speedy trial, and did not seek a bond reduction hearing. (Id.).
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Plaintiff also appears to seek to hold Grantham’s supervisor, Defendant Sarina
Woods, and the GPDC responsible for failing to take action as a result of
Grantham’s alleged ineffective assistance of counsel. (Am. Compl. at 9, 11).
To state a claim for relief under § 1983, a plaintiff must allege that: (1) an
act or omission deprived him of a right, privilege, or immunity secured by the
Constitution or a statute of the United States; and (2) the deprivation occurred
under color of state law. Richardson v. Johnson, 598 F.3d 734, 737 (11th Cir.
2010). The U.S. Supreme Court has held that “[u]nlike a prosecutor or the court,
assigned counsel ordinarily is not considered a state actor.” Vermont v. Brillon,
556 U.S. 81, 91 (2009). See also Polk Cnty. V. Dodson, 454 U.S. 312, 325 (1981)
(“[A] public defender does not act under color of state law when performing a
lawyer’s traditional functions as counsel to a defendant in a criminal proceeding.”);
Burns v. Jorandby, 332 Fed. App’x 602, 603 (11th Cir. 2009) (holding that public
defenders could not be sued under § 1983 because they were not “acting under
color of state law”). The Magistrate Judge found that Plaintiff could not sue
Defendants Amanda Grantham or Sarina Woods because, as Plaintiff’s counsel and
supervising counsel, respectively, they did not act under color of state law in
representing Plaintiff. ([9] at 3-4). The Magistrate Judge also found that Plaintiff
could not sue GPDC because “it is a state agency protected by the Eleventh
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Amendment immunity from suit in federal court and because it is not a person and
therefore not subject to suit under § 1983.” ([9] at 4). The Court finds no plain
error in these findings.
The Magistrate Judge further addressed Plaintiff’s apparent claims to
enforce his rights to a speedy trial and reasonable bail. The Magistrate Judge
found, however, that Plaintiff needed to first exhaust his state court remedies
before he could assert these claims as a habeas corpus action. See, e.g, Braden v.
30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 489-90 (1973); Cargile v.
Secretary, Dep’t of Corrs., 349 fed. App’x. 505, 507 (11th Cir. 2009) (“Generally,
a habeas petitioner cannot raise a claim in federal court if he did not first exhaust
the claim in state court.”); Bradley v. Pryor, 305 F.3d 1287, 1289-90 (11th Cir.
2002). The Court finds no plain error in the Magistrate Judge’s findings.3
B.
Plaintiff’s Motion for Leave to File a Second Amended Complaint
On September 13, 2017, following the Magistrate Judge’s Final R&R,
Plaintiff filed his Motion for Leave to File a Second Amended Complaint [12]
(“Motion to Amend”) and Second Amended Complaint [13] (“Second Compl.”)
alleging facts essentially identical to those alleged in his First Amended
3
Plaintiff’s First Motion to Appoint and Second Motion to Appoint are
denied as moot.
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Complaint, but adding a specific state law claim against Defendant Woods
intentional infliction of emotional distress . (Second Compl. at 10).
Rule 15(a) of the Federal Rules of Civil Procedure allows a plaintiff to file
one amended complaint, as a matter of course, if the amended complaint is filed
within 21 days of service of the original complaint or within 21 days of the
defendant’s filing of a responsive pleading or Rule 12 motion to dismiss. See Fed.
R. Civ. P. 15(a)(1). Amended complaints may be filed outside of these time limits
only “with the opposing party’s written consent or the court’s leave.” See Fed.
R. Civ. P. 15(a)(2).
Rule 15 of the Federal Rules of Civil Procedure provides that “[t]he court
should freely give leave [to amend] when justice so requires.” Fed. R. Civ. P.
15(a)(2). “There must be a substantial reason to deny a motion to amend.”
Laurie v. Alabama Court of Criminal Appeals, 256 F.3d 1266, 1274 (11th Cir.
2001). “Substantial reasons justifying a denial include ‘undue delay, bad faith,
dilatory motive on the part of the movant, . . . undue prejudice to the opposing
party by virtue of allowance of the amendment, [and] futility of amendment.’” Id.
(citing Foman v. Davis, 371 U.S. 178, 182 (1962)).
In Georgia, a claim of intentional infliction of emotional distress must show
the following elements: “(1) the conduct must be intentional or reckless; (2) the
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conduct must be extreme and outrageous; (3) there must be a causal connection
between the wrongful conduct and the plaintiff’s emotional distress; and (4) the
emotional distress must be severe.” Standard v. Falstad, 779 S.E.2d 682, 686 (Ga.
Ct. App. 2015) (quoting Undoinyion v. Re/Max of Atlanta, 657 S.E.2d 644 (Ga.
Ct. App. 2008)). To qualify as sufficiently “extreme and outrageous,” the conduct
at issue “must be so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in a civilized
society.” Id. (internal quotation marks omitted). In the absence of any “physical
impact” to his person, a plaintiff seeking to recover for emotional distress must
also show that the conduct in question was directed at him. Jones v. Fayette
Family Dental Care, Inc., 718 S.E.2d 88, 90 (Ga. Ct. App. 2011) (citing, among
others, Ryckeley v. Callaway, 412 S.E.2d 826 (Ga. 1992)).
Here, Plaintiff fails to allege any facts showing that Woods’ actions were
“extreme and outrageous.” Plaintiff alleges only that he suffered “anxiety” as a
result of Woods’ “fail[ure] to act on information indicating that unconstitutional
acts were occurring.” The facts do not support Plaintiff’s claim that Woods’
actions amounted to “extreme” or “outrageous.” (Second Compl. at 10). The
Court cannot construe Woods’ actions as “so terrifying or insulting as naturally to
humiliate, embarrass or frighten.” Johnson v. Douglas County School District,
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1:09-cv-1023-BBM-RGV, 2009 WL 10665025, at *12 (N.D. Ga. Nov. 12, 2009)
(quoting Sossenko v. Michelin Tire Corp., 324 S.E.2d 593, 594 (Ga. App. 1984).
Plaintiff’s intentional infliction of emotional distress claim is thus futile. Because
the remainder of Plaintiff’s Second Amended Complaint contains claims identical
to his First Amended Complaint and the Court has already determined those claims
fail, the Court denies Plaintiff’s Motion to Amend as futile.
IV.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Justin S. Anand’s Final
Report and Recommendation [9] is ADOPTED.
IT IS FURTHER ORDERED that Plaintiff’s Amended Complaint [7] is
DISMISSED.
IT IS FURTHER ORDERED that Plaintiff’s First and Second Motions to
Appoint Counsel [3, 11] are DENIED AS MOOT and Plaintiff’s Motion for
Leave to File an Amended Complaint [12] is DENIED.
SO ORDERED this 4th day of October, 2017.
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