Smith v. Owens et al

Filing 38

ORDER denying 23 25 6 15 18 22 32 and Adopting 27 Report and Recommendations. Therefore, several defts are dismissed and claims against others are dismissed. Signed by Judge Dudley H. Bowen on 1/25/12. (cmr)

ORIGINAL
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
DUBLIN DIVISION

ZEH2 JAN 25 PM 3: ^ 0
CLER K

SO. WST OF GA.

LESTER J. SMITH, JR.,
Plaintiff,
V.

CV 311-044

FNU ANDERSON, et al.,
Defendants.

ORDER
After a careful, de novo review of the file, the Court concurs with the Magistrate
Judge's Report and Recommendation ("R&R"), to which objections have been filed (doe. nos.
13,14).'
Plaintiff's complaint attempted to assert a multitude of 1983 claims arising under the
First, Eighth, and Fourteenth Amendments against 27 Defendants, some of whom are prison
officials at Telfair State Prison ("TSP"), located in Helena, Georgia, and others of whom are
prison officials at Ware State Prison ("WSP"), located in Waycross, Georgia. (Doe. no. 1, p.
6.) Upon screening the complaint, the Magistrate Judge found, pursuant to Federal Rule of
Civil Procedure 20(a), that Plaintiff's claims against the WSP Defendants were unrelated to

'Plaintiff has set forth objections to the R&R in two separate filings. (Doc. nos. 31,
32.) For ease of reference, the Court will hereinafter refer to both of these documents
collectively as Plaintiffs "objections." Plaintiff also submitted a supplemental filing that was
executed prior to the R&R but docketed afterward. (Doe. no. 29.) Because that filing does
not affect the analysis set forth in the instant Order or the R&R, it warrants no further
discussion.

the claims concerning his confinement at TSP. (Doe. no. 27, pp. 14-15.) Accordingly, the
Magistrate Judge recommended that the claims against the WSP Defendants be dismissed
without prejudice.' (Ld. at 14-15.) The Magistrate Judge recommended that Plaintiff's
remaining claims be dismissed for failure to state a claim, with the exception of Plaintiff's First
Amendment individual capacity claim against Defendant Barrow, with respect to which service
of process issued. ( j at 5-14.) The Magistrate Judge also addressed Plaintiffs multiple
motions for preliminary injunctive relief, recommending that the first three such motions be
denied as moot and that the remaining ones be denied for lack of jurisdiction. (Id. at 16-19.)
Initially, the Court notes that Plaintiffs objections set forth a number of factual
allegations not included in his original complaint, such as his statements regarding the conduct
of Defendant Wright and the Doe Defendants, as well as his averment of being subjected to
prolonged segregated confinement.' (See doe. no. 31, pp. 3, 5.) Plaintiff implores the Court
to reject the Magistrate Judge's R&R based on these new allegations. (See jç,j.,. at 2-5.)
Notably, however, following submission of his original complaint, Plaintiff filed two motions
to amend his pleadings. (Doc. nos. 5, 7.) The Magistrate Judge informed Plaintiff that he was
entitled to amend his complaint but found that he had improperly attempted to do so in a
piecemeal manner. (Doc. no. 10, pp. 2-3.) Accordingly, Plaintiff was instructed in clear terms
d.
to file a single amended complaint setting forth all of his allegations in a single document. (L

at 3-4.) Rather than comply with this instruction, Plaintiff withdrew his requests to amend.
'The Magistrate Judge additionally noted that because WSP is located in the Waycross
Division of this District, any future action involving the dismissed claims would require that
Plaintiff commence a new case in that Division. Qjee doe. no. 27, p. 15,)
'Plaintiff provides no reason for failing to assert these allegations previously.
nos. 31, 32.)
ki

doe.

(Doe. no. 11.)
Now, Plaintiff again seeks to amend his pleadings in an improper fashion by setting
forth a series of allegations in his objections to be read in conjunction with his original
complaint. The Court will not allow Plaintiff to amend his complaint in this manner. Because
Plaintiff has failed to comply with the procedural rules governing amendments or the
instructions provided by the Magistrate Judge, the Court will not consider the new allegations
set forth in Plaintiffs objections to the R&R.4 See Williams v. McNeil, 557 F.3d 1287, 1291
(11th Cir. 2009) (approving district court's refusal to consider new argument set forth by pro
se litigant in objections where the party had the opportunity to present the argument to

magistrate judge and failed to do so); see also United States v. Howell, 231 F. 3d 615, 621 (9th
Cir. 2000) (holding that district courts are not required to consider supplemental factual
allegations presented for the first time in objections to a magistrate judge's report and
recommendation).
Turning to the Magistrate Judge's determination of the claims set forth in the original
complaint, Plaintiff's objections plainly fail to provide any reason to depart from the
conclusions in the R&R. Thus, Plaintiff's objections are OVERRULED.'
'The Court recognizes that "[g]enerally, where a more carefully drafted complaint
might state a claim, a plaintiff must be given at least one chance to amend the complaint before
the district court dismisses the action with prejudice." Bryant v. Dupree, 252 F.3d 1161, 1163
(11th Cir. 2001) (quoting Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991)) (punctuation
omitted). Here, however, Plaintiff was not only given a chance to amend, he was explicitly
instructed on how to do so properly. Moreover, the Court is neither dismissing this action with
prejudice nor foreclosing Plaintiff from properly amending his complaint.
'Plaintiff's objections include a request to transfer his claims against the WSP
Defendants to the Waycross Division rather than dismissing them without prejudice as
recommended by the Magistrate Judge. The Court finds that transfer is not warranted in light
of the fact that Plaintiff must commence a new case in order to refile such claims, which
3

Accordingly, the Report and Recommendation of the Magistrate Judge is ADOPTED
as the opinion of the Court. Therefore, the following of Plaintiff's claims are DISMISSED:
his claims of deliberate indifference to a serious medical need against Defendants Moore,
Baily, Duncan, Buckley, Burnside, and Gore; his due process claim against Defendant Spires;
his retaliation claim against Defendant Spires; his sexual abuse claim against Defendant
Young; and his official capacity claim for monetary damages against Defendant Barrow.
Consequently, the following Defendants are dismissed from this case: Defendants Wright,
Spires, Young, Moore, Jane Doe I, Jane Doe II, Bailey, Finn, Duncan, Buckley, Burnside,
Gore, and Owens. In addition, all of Plaintiffs claims against the WSP Defendants are
DISMISSED without prejudice. As a result, the following Defendants are DISMISSED from

this case: Defendants Anderson, Busey, Hart, Brooks, Turner, Lee, Griffin, Paytee, Davis,
Carter, Ferrell, Vaughn, and Farrah. Finally, Plaintiffs first three motions for preliminary
injunctive relief are DENIED AS MOOT (doc. nos. 6, 15-2, 18), and his remaining motions
for preliminary injunctive relief are DENIED for lack ofjurisdiction. (Doc. nos. 22,23-1, 232, 25.)

SO ORDERED this ^January, 2012, at Augusta, Georgia.
dof

UNITED STATES DISTRICT

requires that he file a new complaint setting forth only those claims and that he either pay the
full filing fee applicable to that action or move to proceed in forma pauperis. Therefore,
Plaintiff's request for a transfer is DENIED. (Doe. no. 32.)
4