Smith v. Owens et al

Filing 123

ORDER adopting re 107 Report and Recommendations; therefore, denying 113 and 39 Motion to Dismiss and finding as moot 56 Motion for TRO and 56 Motion for Preliminary Injunction. Signed by Judge J. Randal Hall on 9/20/12. (cmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
DUBLIN DIVISION
LESTER J. SMITH, JR.,
Plaintiff,
CV 311-044

V.

DONALD BARROW,
Defendant.

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. 114) . !
In his recommendation, the Magistrate Judge advised that Defendant's motion to dismiss and
Plaintiff's motion for preliminary injunctive relief be denied. The Magistrate Judge rejected
Defendant's various arguments that Plaintiff failed to state a valid claim under 42 U.S.C.
§ 1983, and in particular, the Magistrate Judge rejected the argument that Plaintiffs
allegations failed to allege sufficient facts to state a claim that Defendant is liable because
of his supervisory position as Warden at Telfair State Prison ("TSP"). (age doc. no. 107, pp.

'Plaintiff also submitted a supplemental filing that was executed prior to entry of the
Report and Recommendation but docketed afterward. (Doc. no. 109.) Because that filing
does not change the analysis set forth in the instant Order regarding the Magistrate Judge's
recommendation, it warrants no further discussion. Likewise, Plaintiffs response to
Defendant's objections do not warrant further discussion, as Plaintiff primarily re-iterates his
agreement with the Magistrate Judge's analysis concerning Defendant's motion to dismiss.
(Doe. no. 121.)

5-8.) Defendant's objections focus on this supervisory liability portion of the Magistrate
Judge's analysis, but he offers nothing to persuade the Court to deviate from the Magistrate
Judge's conclusion that the motion to dismiss is due to be denied. Thus, Defendant's
objections are overruled.
As to the recommendation that Plaintiff's motion for preliminary injunctive relief
should be denied, the Court agrees with the Magistrate Judge's analysis as it was entered on
July 31, 2012. (Id. at 13-17.) However, since the time of the entry of the recommendation,
Plaintiff has notified the Court that he has been moved from TSP to Smith State Prison
("SSP") in Glennville, Georgia. (Doc. no. 110.) An inmate's claim for injunctive relief
against prison officials is subject to dismissal for mootness when the prisoner is transferred
to another prison and is no longer under the control of the prison officials against whom
injunctive relief is sought. Spears v. Thigpen, 846 F.2d 1327, 1328 (11th Cir. 1988) (per

curiam); Wahl v. McIver, 773 F.2d 1169,1173 (1 lth Cir. 1985) (per curiam) ("Absent class
certification, an inmate's claim for injunctive relief and declaratory relief in a section 1983
action fails to present a case or controversy once the inmate has been transferred.") Thus,
although the Court agrees that Plaintiff's motion does not satisfy the requirements for
obtaining injunctive relief regarding his treatment at TSP, in light of Plaintiff's transfer to
SSP, his motion for injunctive relief is MOOT.
Moreover, after entry of the July 31st Report and Recommendation, Defendant filed
a new motion to dismiss, pursuant Fed. R. Civ. P. 12(b)(1), arguing that Plaintiff's complaint
should be dismissed for lack of subject matter jurisdiction. (See doc. no. 112.) To briefly
summarize, Defendant argues that because Plaintiff has been transferred from TSP to SSP,

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thereby mooting his claims for injunctive relief, and because nominal monetary damages are
not available to Plaintiff in this case, the complaint should be dismissed. ( id.)
Importantly, however, Defendant acknowledges in his argument that the issue of the
availability of nominal damages is not a settled question in the Eleventh Circuit.' (Ld. at 5-9.)
Plaintiff has filed his opposition to this newest motion to dismiss (doc. no. 115), and
Defendant has filed a reply in support of his motion (doc. no. 120).
In light of these latest filings, the Court declines to adopt the portion of the July 31St
Report and Recommendation concerning the filing of an answer and lifting the stay of
discovery in this case that was put in place on February 21, 2012. Qjee doc. no. 107, p. 18.)
Rather, until the Magistrate Judge has had an opportunity to fully analyze all of Defendant's
arguments in the latest motion to dismiss and Plaintiff's opposition thereto in a Report and
Recommendation, and until this Court has had an opportunity to take final action on the
same, Defendant shall not be required to file an answer, and the stay of discovery shall
remain in place.' Likewise, Defendant's obligation to respond to Plaintiff's pending motion
for summary judgment shall continue to be stayed.

'Indeed, Defendant concedes that this Court has issued a ruling explaining that the
provisions of 42 U.S.C. § 1997e(e), the statutory section upon which Defendant bases his
argument concerning nominal damages, "may not preclude a prisoner from seeking nominal
damages." Wilder v. Lawson, CV 110-109, doc. no. 15, pp. 7-9, adopted by doc. no. 17,
2011 WL 3703398, at *4 (S.D. Ga. July 26, 2011).
'As discovery in this case is stayed, Plaintiff's "Motion for Subpoena Duces Tecum,"
in which he requests the production of certain documents, is DENIED. (Doc. no. 113.)
Even if discovery were not stayed, Plaintiff's motion for a subpoena would be denied. As
was explained to Plaintiff in the Order entered in this case on November 14, 2011 (doc. no,
26, p. 8), the Federal Rules of Civil Procedure provide for serving discovery requests on the
opposing party, not the Court, and if Plaintiff has difficulty obtaining requested information,
he must file a motion to compel that complies with Fed. R. Civ. P. 37 and Loc. R. 26.5.

Accordingly, the Report and Recommendation of the Magistrate Judge, as modified
herein, is ADOPTED as the opinion of the Court. Therefore, the motion to dismiss filed by
Defendant is DENIED (doc. no. 39), and the motion for preliminary injunctive relief filed
by Plaintiff is MOOT (doc. nos. 56-1, 56-2). The stay of discovery imposed in this case on
February 21, 2012 (doc. no. 45) shall remain in place. The Magistrate Judge will take up the
merits of Defendant's newly filed motion to dismiss (doc. no. 112) by Report and
Recommendation, and upon final resolution of that motion, this Court will set, as necessary,
new deadlines for Defendant to file an answer and a response to Plaintiff's pending motion
for summary judgment, as well as for discovery and the filing of civil motions.
SO ORDERED this20day of Septemr,2012, at Augusta, Georgia.

HONOJABLE J. RANDAL HALL
UNIT,D STATES DISTRICT JUDGE
S01IITHERN DISTRICT OF GEORGIA

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