Robinson et al v. The State of Georgia et al
Filing
138
ORDER entered overruling Magistrate Judge's 11/1/13 Order denying Plaintiff's request for appoint of counsel is overruled; Plaintiff Lyde is directed to respond to Plaintiff Robinson's 100 Motion to Dismiss from the case within 21 d ays; entered and Plaintiff's are directed to respond to the A.G. Defendants' 111 Motion to Dismiss for Lack of Prosecution; granting Defendants' CASA Glynn and Tye's 112 Motion to Dismiss and Plaintiff's claims against those defendants are dismissed without prejudice; granting Nellises' 130 Motion to Dismiss and Plaintiff's claims against the Nellises are dismissed with prejudice; entered directing the Plaintiff's to respond to Defendant Atwood's 136 Motion to Dismiss. Signed by Chief Judge Lisa G. Wood on 4/28/2015. (ca)
N Me Eniteb tate Di%tritt Court
for tje boutbern IDitrtct of georgia
38runMuttk fltbiion
SCELIA ROBINSON and ZACK LYDE,
Plaintiffs,
CV 213-66
V.
THE STATE OF GEORGIA; AMITY
HOUSE, et al,
Defendants.
ORDER
Presently before the Court are four motions to dismiss
filed by four separate groups of Defendants: Dkt. no. 111, filed
by Defendants Peggy Sorrells, Norris Smith, Frank Bonati, Clyde
Reese, Frank Berry, Chuck Pittman, Amanda Chapman, Vicki
Riggins, LaSharn Hughes, Bobby Cagle, Mary Skelton, Mike Beatty,
and David Cook; Dkt. no. 112, filed by Defendants CASA Glynn,
Inc. and Lynda Tye; Dkt. no. 130, filed by Defendants Gil and
Carrie Murray Nellis; and Dkt. no. 136, filed by Defendant J.
Alexander Atwood. Also before the Court is Plaintiff Robbinson's
"Second Request for a Motion to Amend and Have Co-Plaintiff Zack
Lyde Removed From Case CV 213-066," Dkt. no. 100, which appears
to be an Objection to the Magistrate Judge's November 1, 2013
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Order (Dkt. no. 98) denying Plaintiff's request for appointed
counsel paired with a motion to have Co-Plaintiff Zack Lyde
dropped from the case. After thorough consideration, and having
given the Plaintiffs ample time to respond, Defendants CASA
Glynn and Tye's motion to dismiss (Dkt. no. 112) is GRANTED;
Defendants Gil and Carrie Nellis's motion to dismiss (Dkt. no.
130) is GRANTED; and Plaintiffs are DIRECCTED to respond to the
motions to dismiss filed by Defendants Atwood (Dkt. no.
136)
and
Peggy Sorrels, et al (Dkt. no. 111) within 21 days. Plaintiff's
renewed request for appointed counsel is DENIED, and Plaintiff
Zack Lyde is directed to respond to Plaintiff's motion to have
him removed from the case within 21 days.
I. Procedural Background
A full summary of this pro se action can be found in the
Court's previous Order of February 18, 2014, granting the
initial motions to dismiss made by several Defendants. Dkt. no.
107. As detailed therein, Plaintiffs Scelia Robinson and Zack
Lyde filed their Complaint on May 6, 2013, and elected to amend
it the next month. Dkt. nos. 1, 6. In what the Eleventh Circuit
calls "shotgun fashion" the Complaint and its amendment touch on
more than 40 separate claims lodged against some 110 Defendants.
At the request of many Defendants and following the
directions the Eleventh Circuit has given to courts faced with
such shotgun pleadings, the Magistrate Judge ordered Plaintiffs
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to provide a more definite statement of their claims. Dkt. no.
74. Plaintiffs were given 20 days from August 20, 2013, to
identify which Defendants allegedly violated which rights. Id.
Instead of complying with the Magistrate Judge's Order, the
Plaintiffs asked for a grand jury investigation of the
Magistrate Judge. Dkt. no. 75.
Thereafter, several Defendants moved to dismiss the
Complaint. These motions were granted on February 18, 2014 (Dkt.
no. 107) . Also, the Court recently granted Defendant
Chamberlin's motion to dismiss on March 18, 2015 (Dkt. no. 135).
Among those Defendants with motions presently before the
Court, Defendants CASA Glynn, Inc. and Linda Tye filed their
motion to dismiss on March 17, 2014. See Dkt. no. 112.
Plaintiffs were ordered to file any opposition to this motion
within 21 days. Dkt. no. 118. Defendants Gil and Carrie Nellis
filed their motion to dismiss on January 12, 2015. See Dkt. no.
130. And again, Plaintiffs were ordered to file any opposition
to the Nellises' motion within 21 days. Dkt. no. 132. Plaintiffs
have failed to respond to these Defendants' motions within the
time prescribed in the Court's Orders.
As to the two other motions to dismiss before the Court,
those motions remain unopposed but Plaintiffs have not yet been
directed to file any response, as they have been for the other
groups of Defendants. Defendants Peggy Sorrels, Norris Smith,
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and others named as movants in Dkt. no. 111-1 and represented by
Georgia's Attorney General (and thus, the "A.G. Defendants" for
purposes of this Order), filed their motion to dismiss on March
6, 2014. See Dkt. no. 111. Defendant Atwood filed his motion to
dismiss on March 19, 2015. See Dkt. no. 136.
Finally, Plaintiff filed her first motion for appointed
counsel on October 28, 2013. Dkt. no. 95. The Magistrate Judge
denied that request on November 1, 2013. Dkt. no. 98. Plaintiff
then filed the present "second request," which, in addition to
restating her request for appointed counsel, asks to have
Plaintiff Zack Lyde dropped from the case. Dkt. no. 100.
This case was stayed pending the resolution of Plaintiff's
appeal to the Eleventh Circuit. The Circuit dismissed the
appeal, and the Court may now address several of these motions
that stood unresolved pending the stay.
II. Plaintiff Robinson's "Second Request for a Motion to Amend
and Have Co-Plaintiff Zack Lyde Removed from Case CV 213066"
Plaintiff Robinson's November 12, 2013 motion requests that
the Court appoint counsel and remove Plaintiff Zack Lyde from
the case. Dkt. no. 100. While these requests appear to be
interrelated insofar as Plaintiff Robinson intended Plaintiff
Lyde to serve as her counsel, the Court will address them
separately.
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a. Plaintiff's Request for Appointment of Counsel
Plaintiff Robinson refiled her request for appointment of
counsel less than two weeks after the Magistrate Judge rejected
her initial request. See Dkt. nos. 98, 100. Because the
Magistrate Judge has denied this request already, this Court
will interpret Plaintiff's renewed request as an Objection to
the Magistrate Judge's ruling.
When a magistrate judge rules on a non-dispositive pretrial
matter, parties may object to that ruling and seek review from
the district judge under Federal Rule of Civil Procedure 72(a).
See Fed. R. Civ. P. 72(a). In reviewing the magistrate judge's
order, the district judge must "modify or set aside any part of
the order that is clearly erroneous or is contrary to law." Id.
The Magistrate Judge denied Plaintiff Robinson's request
for appointment of counsel because "[t]here is no constitutional
right to appointed counsel in a civil case such as this one, and
in the absence of the showing of an exceptional circumstance the
Court is not inclined at this juncture to appoint counsel to
assist the Plaintiff." Dkt. no. 98 (citing Wahl v. McIver, 773
F.2d 1169 (11th Cir. 1985)).
Plaintiff's renewed request for counsel is substantively
the same as her initial request before the Magistrate Judge. The
renewed request includes an "Amendment" which discusses, at
length, how she had intended Co-Plaintiff Lyde to serve as her
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counsel but he has, in fact, abandoned that "responsibility" and
should thus be removed from the case. Dkt. no. 100,
PP. 2-4. The
Court notes that Mr. Lyde is not an attorney. Plaintiff's
request to remove Co-Plaintiff Lyde from the case does not
establish the "exceptional circumstances" necessary for this
Court to appoint counsel in a civil case. Plaintiff Robinson has
not shown that counsel is necessary to present meritorious
issues to the Court. See Lopez v. Reyes, 692 F.2d 15, 17 (5th
Cir. 1982). Plaintiff's Objection to the Magistrate Judge's
November 1, 2013 Order denying her request for appointment of
counsel is OVERRULED.
b. Plaintiff Robinson's Request to Have Co-Plaintiff Lyde
Removed from the Case
As noted above, Plaintiff Robinson amended her request for
appointment of counsel to include a request that Co-Plaintiff
Lyde be removed from the case. Under Federal Rule of Civil
Procedure 21, "[o]n motion or on its own, the court may at any
time, on just terms, add or drop a party." Fed. R. Civ. P. 21.
Plaintiff Robinson appears to argue that Co-Plaintiff Lyde
should be dropped from the case because he has no real interest
in the case and thus is present only by misjoinder. See Dkt. no.
100, pp. 2-4. Indeed, this Court has previously noted that
Plaintiffs' Complaint does not allege any specific harm to
Plaintiff Lyde. Dkt. no. 107, p. 3. By Plaintiff Robinson's
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account, she named Lyde as a Plaintiff because he told her it
was necessary for him to be a named co-plaintiff if he were to
successfully represent her in this suit. Dkt. no. 100,
p. 7.
Absent any indication of Plaintiff Lyde's interest in the
case, dropping Plaintiff Lyde may be the proper course of
action. However, in the interest of justice, this Court directs
Plaintiff Lyde to file within 21 days any opposition to
Plaintiff Robinson's request to have him dropped from the case.
The Court will issue a decision on Plaintiff Robinson's motion
upon consideration of Plaintiff Lyde's response.
III. Defendants' Motions to Dismiss
As discussed above, Plaintiffs have been repeatedly warned
that they must respond to the various Defendants' motions to
dismiss if they wish to maintain their claims against those
Defendants. They have repeatedly failed to heed the Court's
warnings. As to the motions presently before the Court,
Plaintiffs were directed to respond to two of them (Dkt. nos.
112, 130), but have yet to be directed to respond to the other
two (Dkt. nos. 111, 136).
a. The Motions to Dismiss to which Plaintiffs have been
Directed to Respond
On March 18, 2014, Plaintiffs were directed to respond to
Defendants CASA Glynn and Linda Tye's motion to dismiss. Dkt.
no. 118. Similarly, on January 13, 2015, Plaintiffs were
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directed to respond to Defendants Gil and Carrie Nellis's motion
to dismiss (Dkt. no. 132). Both of these Orders informed
Plaintiffs that if they failed to respond within 21 days, "the
Court will determine that there is no opposition to the motion."
Dkt. nos. 118, 132 p. 2. And for both motions, Plaintiffs have
failed to respond. This failure alone is reason enough to grant
the Defendants' motions, but those motions could also be granted
on the merits.
Defendants CASA Glynn and Tye seek dismissal pursuant to
Federal Rule of Civil Procedure 12(b) (5), which allows a court
to dismiss a case for insufficient service of process. Dkt. no.
113, p. 1; Fed. R. Civ. P. 12(b) (5). "Without valid service of
summons or a waiver of service, the Court cannot establish
proper venue and personal jurisdiction over the defendants, and
the case may not proceed." Mann v. Castiel, 729 F. Supp. 2d 191,
196 (D.D.C. 2010) (citing Omni Capital Int'l, Ltd. v. Rudolph
Wolff & Co., Ltd., 484 U.S. 97, 104 (1987)). The burden is on
the plaintiff to establish the validity of service of process on
the defendant. Lowdon PTY Ltd. Westminster Ceramics, LLC, 534 F.
Supp. 2d 1354, 1360 (N.D. Ga. 2008).
The record shows that Defendant CASA Glynn was never served
with a summons or Complaint, despite being named in the
Complaint. see Dkt. no. 7. Defendant Tye was issued a summons,
but this summons was returned unexecuted. Compare id. at 34 with
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Dkt. no. 61. Plaintiffs' Complaint was filed on May 6, 2013.
More than 700 days have passed since then. "If a defendant is
not served within 120 days after the complaint is filed, the
court—on motion or on its own after notice to the plaintiff—must
dismiss the action without prejudice against that defendant or
order that service be made within a specified time." Fed. R.
Civ. P. 4 (m) . Plaintiff was directed by this Court to respond to
Defendants' motion, and thus was on notice that it had failed to
properly serve Defendants CASA Glynn and Tye. As such, the Court
will GRANT Defendants CASA Glynn and Tye's motion to dismiss
(Dkt. no. 112), and dismiss Plaintiffs' claims against them
without prejudice.
Defendants Gil and Carrie Nellis's motion to dismiss seeks
dismissal pursuant to rules 12 (b) (5) and 12 (b) (6). The Court
will address their motion to dismiss under Rule 12(b) (6) for
failure to state a claim upon which relief can be granted.
When ruling on a motion to dismiss brought pursuant to Rule
12(b) (6), a district court must accept as true the facts as set
forth in the complaint and draw all reasonable inferences in the
plaintiff's favor. Randall v. Scott, 610 F.3d 701, 705 (11th
Cir. 2010). Although a complaint need not contain detailed
factual allegations, it must contain sufficient factual material
"to raise a right to relief above the speculative level." Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). At a minimum, a
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complaint should "contain either direct or inferential
allegations respecting all the material elements necessary to
sustain a recovery under some viable legal theory." Fin. Sec.
Assurance, Inc. v. Stephens, Inc., 500 F.3d 1276, 1282-83 (11th
Cir. 2007) (per curiam) (quoting Roe v. Aware Woman Ctr. for
Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2001)).
As noted previously, Plaintiffs' Complaint is a
quintessential example of a shotgun pleading, which the Eleventh
Circuit has admonished for well over two decades. See Maaluta v.
Samples, 256 F.3d 1282, 1284 (11th Cir. 2001) (per curiam).
Plaintiffs claim that "[a] suit is needed against the State of
Georgia[,] the case workers, family court judges, and district
lawyers, state and federal agencies, DHS and its providers,
hired attorneys, counselors, and medical personnel" for
"Judicial and Government accountability." Dkt. no. 1, P. 8. As
this Court has observed in other Defendants' motions to dismiss,
the only specific allegations in the Complaint are against Glynn
County Juvenile Court, the State of Georgia, an unidentified
DFCS worker, and Judge Rountree. See Dkt. no. 135,
p. 3 (citing
Compi., Dkt. no. 1; First Am. Compi., Dkt. no. 6). Beyond
conclusory assertions of legal violations, Plaintiffs proffer no
averments showing a plausible claim for relief, under any of
their 40-plus theories of liability. The Complaint gives no
indication of what, if anything, the Nellises have done wrong.
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Even under the liberal standard under which pro se complaints
are interpreted, the allegations in Plaintiffs' Complaint are
conclusory, speculative, unspecific, and fall short of the
standard for alleging a plausible claim for relief. These fatal
flaws persist even after Plaintiffs were under Court order to
give a more definite statement and have twice declined
opportunities to respond to the Nellises' motion. Defendant Gil
and Carrie Nellis's motion to dismiss (Dkt. no. 130) is GRANTED,
and all of Plaintiffs' claims against the Nellises are dismissed
with prejudice.
b. The Remaining Motions to Dismiss
Plaintiff Robinson has not yet been directed to respond to
the A.G. Defendants' and Defendant Alexander's motions to
dismiss (Dkt. nos. 111, 136)
The Court is reluctant to rule on these motions without
receiving a response from the pro se Plaintiffs or ensuring that
Plaintiffs are advised of the potential ramifications caused by
their failure to respond. Once such a motion is filed, the
opponent should be afforded a reasonable opportunity to respond
to or oppose such a motion. This Court must consider that the
Plaintiffs in this case are pro se litigants. Haines v. Kerner,
404 U.S. 519, 520 (1972). When defendants file a motion to
dismiss, the court must construe the complaint liberally in
favor of plaintiffs, taking all facts alleged by the plaintiffs
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as true, even if doubtful in fact. Bell Atlantic Corp. v.
Twombly, 550 U.S. 554, 555 (2007).
Accordingly, Plaintiffs are hereby ORDERED to file any
objections to the A.G. Defendants' and Defendant Alexander's
motions for dismissal (Dkt. nos. 111, 136), or to otherwise
inform the Court of their decision not to object to these
Defendants' motions within twenty-one (21) days of the date of
this Order. Tazoe, 631 F.3d at 1336 (advising that a court
cannot dismiss an action without employing a fair procedure)
Should Plaintiffs not timely respond to the A.G. Defendants' and
Defendant Alexander's motions to dismiss, the Court will
determine that there is no opposition to the motion. See
L. R. 7.5.
CONCLUSION
Defendants Nellises' motion to dismiss (Dkt. no. 130) is
GRANTED and Plaintiffs' claims against the Nellises are
dismissed with prejudice; Defendants CASA Glynn and Tye's motion
to dismiss (Dkt. no. 112) is GRANTED and Plaintiffs' claims
against those Defendants are dismissed without prejudice;
Plaintiff Robinson's Objection (Dkt. no. 100) to the Magistrate
Judge's November 1, 2013 Order denying Plaintiff's request for
appointed counsel is OVERRULED; Plaintiff Lyde is DIRECTED to
respond to Plaintiff Robinson's motion to have him dropped from
the case (Dkt. no. 100) within 21 days; and Plaintiffs are
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DIRECTED to respond to the A.G. Defendants' motion to dismiss
(Dkt. no. 111) and Defendant Atwood's motion to dismiss (Dkt.
no. 136)
SO ORDERED, this 28TH day of April, 2015.
LISA GODBEY aD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
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