Cook v. Gains et al

Filing 15

ORDER ADOPTING REPORT AND RECOMMENDATIONS 6 of the Magistrate Judge as its opinion and Overrules the objections. The Court Denies Plaintiff's request to proceed in forma pauperis and Motion to Avoid Plaintiff's Prior Complaints in Regard to His Claim in the Declaration (doc. nos. 2 , 5 ), and Dismisses this action without prejudice. The Court also Denies the two motions requesting an investigation of alleged mail tampering at ASMP and the motion for appoint of counsel (doc. nos. 11 , 12 , 14 ). Signed by Chief Judge J. Randal Hall on 1/10/2022. (ca)

Case 1:21-cv-00161-JRH-BKE Document 15 Filed 01/10/22 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

MARCUS COOK,

Plaintiff,
CV 121-161

CAPTAIN GAINS;
LIEUTENANT MR. NEAL;
SERGEATNT MS. McAUTHOR;
SERGEANT MS. KEMP;
CERT TEAM OFFICER JASON SMITH;
SERGEANT MR. MOTON;
WARDEN EDWIN PHILBIN; and
UNIT MANAGER MR. HARMAN,
Defendants.

ORDER

After a careful, de novo review of the file, the Court concurs with the Magistrate

Judge's Report and Recommendation, to which objections have been filed. (Doc. no. 13.) In
addition to objections. Plaintiff filed a second motion to appoint an agent, a motion to
appoint counsel, and a motion for reconsideration of the order denying his first motion to
appoint an agent. (Doc. nos. 11, 12, 14.) The Magistrate Judge recommended denying the
motion to proceed in forma pauperis, as well as the "Motion to Avoid Plaintiffs Prior

Complaints in Regard to His Claim in the Declaration," and dismissing the case without
prejudice because Plaintiff has accumulated three strikes under 28 U.S.C. § 1915(g) and does

not qualify for the imminent danger of serious physical injury exception to § 1915(g). (Doc.
no. 6, pp. 2-6.) The Magistrate Judge also recommended dismissal because Plaintiff failed to

Case 1:21-cv-00161-JRH-BKE Document 15 Filed 01/10/22 Page 2 of 3

truthfully disclose his prior filing history and filed the case prior to exhausting administrative
remedies. (Id. at 6-10.)

Plaintiffs objections and motions filed after entry ofthe Report and Recommendation
all center on the theme of alleged mail tampering at Augusta State Medical Prison
("ASMP"). According to Plaintiff everything he has mailed to the Court has been re-written
by ASMP officials. He knows this because the description of his claims in the Report and
Recommendation "are absolutely untrue and contrary to the plaintiffs original stories in his

claims in his original complaint, motions, and pleadings before they had been fraudulently
re-written. .. ." (Doc. no. 13, p. 2; see also doc. no. 11, p. 1; doc. no. 14, p. 3.) Notably,

however, Plaintiff does not provide any specific information about incorrect allegations or
otherwise explain how the information in the Court record differs from what he believes he
submitted. Moreover, after Plaintiff began sending his filings to family members to mail to
the Court, he claims that his family joined in the conspiracy to tamper with his mail, but he
again provides no explanation or facts supporting his theory. (See doc. no. 14, p. 2.)

As the Magistrate Judge explained in the order denying the first motion for
appointment of an investigator, the record shows Plaintiffs mail has successfully travelled
from ASMP to the Court. (See doc. no. 10, pp. 1-2.) Nor has Plaintiff identified any
exceptional circumstances warranting court interference in the day-to-day operations of
ASMP with respect to processing mail. See Bell v. Wolfish. 441 U.S.520, 547 (1979).
Therefore, the Court DENIES the two motions requesting an investigation of alleged mail
tampering at ASMP. (Doc. nos. 11, 14.)

Likewise, the Court DENIES the motion for appointment of counsel to help Plaintiff
litigate his case. (Doc. no. 12.) As a general rule, there is no entitlement to appointed counsel

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in a civil rights case such as this one. Dean v. Barber. 951 F.2d 1210, 1216 (11th Cir. 1992).
Plaintiff not only fails to show exceptional circumstances exist to justify the appointment of
counsel, Steele v. Shah. 87 F.3d 1266, 1271 (11th Cir. 1996), but with the entry of this
Order, Plaintiffs case is closed.

In sum. Plaintiff offers no information to change the analysis he has accumulated

three strikes under § 1915(g), has not demonstrated he is in imminent danger of serious

physical injury, and may not proceed in forma pauperis. Nor has Plaintiff provided any
information undermining the additional reasons for dismissal based on furnishing untruthful
information about his prior filing history and failing to exhaust administrative remedies prior
to filing the case. Accordingly, the Court OVERRULES the objections and ADOPTS the
Report and Recommendation ofthe Magistrate Judge as its opinion.
Therefore, the Court DENIES Plaintiffs request to proceed in forma pauperis and
"Motion to Avoid Plaintiffs Prior Complaints in Regard to His Claim in the Declaration,"
(doc. nos. 2, 5), and DISMISSES this action without prejudice. The Court also DENIES the

two motions requesting an investigation of alleged mail tampering at ASMP and the motion
for appointment of counsel. (Doc. nos. 11, 12, 14.) If Plaintiff wishes to proceed with the
claims raised in this lawsuit, he must initiate a new lawsuit, which would require submission
of a new complaint. See Dupree v. Palmer. 284 F.3d 1234, 1236 (11 th Cir. 2002).
SO ORDERED this

day of January, 2022, at Augusta, Georgia.

HALLX^HIEF JUDGE

UMJH)STATES DISTRICT COURT
l^UTHERN DISTRICT OF GEORGIA