Baker v. Jump, et al

Filing 43

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS as moot Defendants' 26 MOTION to Dismiss. Any party seeking to object to this Report and Recommendation is ordered to file specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered. (Objections to R&R due by 4/7/2017). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 3/24/2017. (csr)

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

MICHAEL SHELLY BAKER, JR.,
Plaintiff,

CIVIL ACTION NO.: 2:16-cv-37

v.
DR. JEFFREY GUNDERSON; TAMMY
BROOKS; TAIWANA HALL; and
DONNICE JURAN,
Defendants.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Presently before the Court are Plaintiff’s Motion to Amend Complaint and Motion to
Amend or Add Parties. (Docs. 32, 33.) Defendants Brooks, Hall, and Juran filed a Response.
(Doc. 35.) For the reasons which follow, the Court GRANTS Plaintiff’s Motion to Amend
Complaint, (doc. 32), and DENIES Plaintiff’s Motion to Amend or Add Parties, (doc. 33). The
Court DIRECTS the Clerk of Court to file Plaintiff’s “Petition of Complaint and Claim”,
(doc. 32-1), as Plaintiff’s “First Supplemental Complaint” upon the docket of this case. 1 In
addition, I RECOMMEND the Court DISMISS as moot the Motion to Dismiss filed by
Defendants Brooks, Hall, and Juran (doc. 26).

1

An amended complaint ordinarily supersedes the initial complaint and becomes the operative pleading
in a case. However, in this case, Plaintiff’s desired amendment only includes his monetary damages
request. This amendment does not include Plaintiff’s factual allegations against the named Defendants.
Thus, while Plaintiff attempts to buttress his claims against Defendants through his proposed Amended
Complaint, he may unwittingly forfeit his factual claims against Defendants. Moreover, “[t]he law
generally favors the consideration of all potential claims under one complaint.” Little v. Groome Transp.
of Georgia, Inc., No. CIV.A 1:07-CV-0455-J, 2008 WL 4280362, at *3 (N.D. Ga. Sept. 15, 2008). Thus,
it is more appropriate to consider Plaintiff’s desired amendment as a supplement to Plaintiff’s Complaint
rather than as his Amended Complaint.

BACKGROUND
In his Complaint, Plaintiff alleged Defendants were deliberately indifferent to his serious
medical needs and safety while he was a pretrial detainee at the Glynn County Detention Center
in Brunswick, Georgia, in February and March 2016. Specifically, Plaintiff asserted he fell in
his own urine while he was in the medical unit because his left elbow and hip socket were
broken, and Defendants refused to help Plaintiff for more than an hour, despite his cries for help.
(Doc. 1, pp. 5–6.) Defendant Gunderson eventually examined Plaintiff’s injuries, and Plaintiff
was transferred to Southeast Georgia Health System and then to Memorial Hospital in Savannah,
Georgia, due to the severity of his injuries. (Id. at p. 6.)
Approximately two and a half weeks after Plaintiff’s return to the Glynn County
Detention Center, Plaintiff slipped while trying to get his drink off of a table and hurt his hip,
back, neck, and left elbow.

Nurse Johnson examined Plaintiff, and he was once again

transported to Southeast Georgia Health System. Medical personnel at the hospital examined
Plaintiff and discharged him with a left arm sling and prescription pain medication. (Id. at p. 5.)
Two days later, Plaintiff attended his preliminary hearing. Defendant Hall, Ms. Franks,
Major Heath, and Sergeant Neaves claimed that Defendant Gunderson told them Plaintiff did not
need an arm sling. Defendant Hall, Ms. Franks, Major Heath, and Sergeant Neaves then used
physical force to remove the sling from Plaintiff’s arm, causing Plaintiff more physical pain.
(Id.) On August 23, 2016,the Court ordered service of Plaintiff’s Complaint upon Defendants.
(Doc. 16.)
Defendant Gunderson filed an Answer and Counterclaim to Plaintiff’s Complaint.
(Doc. 19.) The Court issued a Scheduling Notice on September 30, 2016, and advised the parties
that amended pleadings were due no later than November 28, 2016. (Doc. 21.) Defendants

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Brooks, Hall, and Juran filed a Motion to Dismiss and their Answer on November 8, 2016.
(Docs. 26, 27.) Plaintiff then filed his Motions to Amend on November 18 and 28, 2016.
(Docs. 32, 33.)
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 15(a)(1), a party may amend his complaint once
as a matter of right within twenty-one (21) days after service of a responsive pleading or a
motion under Rule 12(b), (e), or (f). 2 Even when a party may not amend as a matter of right, he
may amend with the opposing party’s written consent or the court’s leave. Fed. R. Civ. P.
15(a)(2). “The court should freely give leave when justice so requires.” Id. While leave to
amend is generally freely given, it is by no means guaranteed. “The function of Rule 15(a),
which provides generally for the amendment of pleadings, is to enable a party to assert matters
that were overlooked or were unknown at the time he interposed the original complaint or
answer.” 6 Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 1473. However,
the decision on whether to grant a motion to amend is within the sound discretion of the trial
court. Addington v. Farmer’s Elevator Mut., Ins. Co., 650 F.2d 663, 666 (5th Cir. 1981). “In
making this determination, a court should consider whether there has been undue delay in filing,
bad faith or dilatory motives, prejudice to the opposing parties, and the futility of the
amendment.” Cooks v. United States, No. CV 114-195, 2015 WL 7069665, at *1 (S.D. Ga. Nov.
13, 2015) (quoting Saewitz v. Lexington Ins. Co., 133 F. App’x 695, 699 (11th Cir. 2005)).

2

The Eleventh Circuit Court of Appeals has made clear that the Prison Litigation Reform Act (“PLRA”)
does not change this right to amend. Brown v. Johnson, 387 F.3d 1344, 1349 (11th Cir. 2004) (“We
agree with the majority of circuits that the PLRA does not preclude the district court from granting a
motion to amend. Nothing in the language of the PLRA repeals Rule 15(a).”). Accordingly, the fact that
the Court has already conducted a frivolity review of Plaintiff’s Complaint does not deprive Plaintiff of
his right to amend. Id.
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DISCUSSION
I.

Plaintiff’s Motion to Amend (Doc. 32)
Plaintiff contends he is seeking $250,000.00 in monetary damages in this case as

recovery for his medical care costs, court fees, and expenses. (Doc. 32.) Defendants Brooks,
Hall, and Juran do not oppose Plaintiff’s Motion to Amend, as Plaintiff is proceeding pro se and
perhaps did not realize he needed to specify that he is seeking monetary damages in his original
Complaint. (Doc. 35, p. 2.) However, these Defendants maintain Plaintiff’s amendment does
not affect their Motion to Dismiss because they moved to dismiss Plaintiff’s equitable relief
claims against them.
Plaintiff filed his Motion to Amend within twenty-one (21) days of the filing of
Defendants’ responsive pleadings, and he can amend as a matter of right. Thus, the Court
GRANTS Plaintiff’s Motion to Amend, and Plaintiff now seeks monetary damages against
Defendants. Defendants Brooks, Hall, and Juran have no opposition to this amendment, and
Defendant Gunderson failed to object to Plaintiff’s desired amendment. Additionally, the Court
finds this amendment will avoid piecemeal litigation by allowing Plaintiff to seek all forms of
relief against Defendants in one cause of action. 3 However, Plaintiff’s desired amendment does
have an effect on Defendants’ Motion to Dismiss, to which the Court now turns.
II.

Motion to Dismiss Filed by Defendants Brooks, Hall, and Juran (Doc. 26)
In their Motion, Defendants Brooks, Hall, and Juran assert Plaintiff seeks only equitable

relief. (Doc. 26, p. 5.) These Defendants note that, because all Plaintiff seeks is injunctive relief

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Because Plaintiff filed his Motion to Amend within twenty-one days of the filing of the responsive
pleadings Defendants Brooks, Hall, and Juran filed, he need not have filed a motion with the Court.
However, Defendant Gunderson filed his Answer on September 30, 2016, and, out of an abundance of
caution, the Court will consider Plaintiff’s Motion to have been made pursuant to Rule 15(a)(2) since
Plaintiff’s Supplemental Complaint encompasses relief sought against all Defendants, including
Defendant Gunderson.
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against them and because Plaintiff is no longer housed at the Glynn County Detention Center, his
claims against Defendants are moot and should be dismissed in their entirety.

(Id.)

Nevertheless, Plaintiff’s Supplemental Complaint adds monetary damages claims against all
Defendants, and thus, his claims are no longer mooted in their entirety. Generally, “an amended
complaint supersedes the initial complaint and becomes the operative pleading in the case.”
Lowery v. Ala. Power Co., 483 F.3d 1184, 1219 (11th Cir. 2007). However, when a plaintiff’s
subsequent complaint refers to, adopts, or incorporates the plaintiff’s original complaint, “it
cannot be said that the subsequent complaint[ ] superceded (sic) the original complaint.” Hall v.
Louisiana, Civil Action NO. 12-00657-BAJ-RLB, 2014 WL 1431671, at *2 (M.D. La. Apr. 14,
2014) (citing Stewart v. City of Houston Police Dep’t, 372 F. App’x 475, 478 (5th Cir. 2010)).
In his Motion, Plaintiff states he “prays this Honorable Court renew” his Complaint against
Defendants’ Motion to Dismiss. (Doc. 33.) Thus, it is appropriate for the Court to deem
Plaintiff’s desired amendment to be his Supplemental Complaint.
Plaintiff’s Supplemental Complaint, together with his original Complaint, is now the
operative pleading in this case and moots Defendants’ Motion to Dismiss the original Complaint.
See Perkins v. Kushla Water Dist., No. CIV.A. 13-00286-KD-B, 2013 WL 4511329, at *1 (S.D.
Ala. Aug. 23, 2013) (“Because Plaintiff’s amended complaint is now the operative pleading in
this action, Defendants’ motion [to dismiss] is moot.”) (citing Pintando v. Miami-Dade Housing
Agency, 501 F.3d 1241, 1243 (11th Cir. 2007); DeSisto College v. Line, 888 F.2d 755, 757 (11th
Cir. 1983); Meterlogic, Inc. v. Copier Solutions, Inc., 185 F. Supp. 2d 1292, 1297 (S.D. Fla.
2002)).

Moreover, the Supplemental Complaint’s request for monetary relief nullifies

Defendants’ basis for dismissal—that Plaintiff only seeks injunctive relief. Consequently, the
Court should DISMISS as moot the Motion to Dismiss Defendants Booth, Hall, and Juran filed.

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Should these Defendants choose to re-urge their arguments in favor of dismissal of Plaintiff’s
equitable relief claims or on any other basis, they may do so by filing a dispositive motion within
twenty-one (21) days of this Order. 4
III.

Plaintiff’s Motion to Amend or Add Parties (Doc. 33)
Plaintiff wishes to further amend his Complaint by adding as Defendants eight (8)

individuals he claims were witnesses to the events described in his original Complaint. Plaintiff
also wishes to add as a Defendant the attorney for Defendants Brooks, Hall, and Juran because
Plaintiff did not receive these Defendants’ Answer and Motion to Dismiss until seven (7) days
after these pleadings were mailed to him. (Doc. 33.) Defendants Brooks, Hall, and Juran assert
this desired amendment should be denied because his amendment is futile. (Doc. 35, p. 2.)
When reviewing a Complaint on an application to proceed in forma pauperis, the Court is
guided by the instructions for pleading contained in the Federal Rules of Civil Procedure. See
Fed. R. Civ. P. 8 (“A pleading that states a claim for relief must contain [among other things] . . .
a short and plain statement of the claim showing that the pleader is entitled to relief.”); Fed. R.
Civ. P. 10 (requiring that claims be set forth in numbered paragraphs, each limited to a single set
of circumstances). Further, a claim is frivolous under Section 1915(e)(2)(B)(i) “if it is ‘without
arguable merit either in law or fact.’” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002)
(quoting Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001)). To state a claim for relief under
Section 1983, Plaintiff must satisfy two elements. First, he must allege that an act or omission
deprived him “of some right, privilege, or immunity secured by the Constitution or laws of the
United States.” Hale v. Tallapoosa Cty., 50 F.3d 1579, 1582 (11th Cir. 1995). Second, Plaintiff

4

The Court notes the deadline to file motions was March 19, 2017. (Doc. 21.) The Court will entertain
any motion for extension of time counsel wishes to file.
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must allege that the act or omission was committed by “a person acting under color of state law.”
Id.
The Court DENIES Plaintiff’s Motion to Amend or Add Parties because Plaintiff’s
desired amendment would be futile. Plaintiff wishes to amend his Complaint by adding as
Defendants eight (8) individuals he claims witnessed the events described in his original
Complaint. In addition, Plaintiff seeks to name as a Defendant the attorney for Defendants
Brooks, Hall, and Juran because it took a week for the responsive pleadings she filed to reach
Plaintiff. However, the eight (8) witnesses to the events Plaintiff described in his original
Complaint are just that—witnesses.

Moreover, these individuals cannot be named as

Defendants, as Plaintiff has made no factual allegations against these individuals, let alone any
allegations which indicate these individuals violated Plaintiff’s constitutional rights.
Additionally, Defendants’ attorney is not a state actor and cannot be held liable for any alleged
violation of Plaintiff’s constitutional rights due to his receipt of counsel’s pleadings a week after
she filed these pleadings. See Moore v. Jason A. Craig & Assocs., Attorney at Law, No.
6:07CV3-BAE-JEG, 2007 WL 2376288, at *1 (S.D. Ga. Aug. 15, 2007) (noting that private
attorneys are not state actors for purposes of Section 1983 liability).
In short, even if the Court accepts Plaintiff’s allegations against these nine (9) individuals
as true, he fails to allege that these individuals violated his constitutional rights while acting
under color of state law. Thus, Plaintiff does not state a viable Section 1983 claim against them.
CONCLUSION
For the above-stated reasons, the Court GRANTS Plaintiff’s Motion to Amend
Complaint, (doc. 32), and DENIES Plaintiff’s Motion to Amend or Add Parties, (doc. 33). The
Court DIRECTS the Clerk of Court to file Plaintiff’s “Petition of Complaint and Claim”,

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(doc. 32-1), as Plaintiff’s “First Supplemental Complaint” upon the docket of this case. In
addition, I RECOMMEND the Court DISMISS as moot Defendants Brooks, Hall, and Juran’s
Motion to Dismiss.
SO ORDERED and REPORTED and RECOMMENDED, this 24th day of March,
2017.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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