Wilson v. Danforth et al

Filing 62

ORDER dismissing 37 Motion and adopting 44 Report and Recommendations. Therefore, defendants Telfair County, Glen Johnson, Steve Upton, and Jacob Beasley are Dismissed from this case. Plaintiff's claims for monetary damages against all remaining defendants in their official capacities are also dismissed. Signed by Judge Dudley H. Bowen on 5/30/17. (cmr)

IN THE UNITED STATES DISTRICT COURT

U.S. DISTRICT COURT
AUCUTTA CIV

FOR THE SOUTHERN DISTRICT OF GEORGIA

zon MAY 30 P 3: 0

DUBLIN DIVISION
CLERK

SO.DIST. fjr'GA

RICKY LEWIS WILSON,

Plaintiff,
CV 316-040

V.

WILLIAM DANFORTH; Former Warden;
FRED GAMMAGE,
Deputy Warden of Security, Telfair
State Prison; ROBERT TOOLE,

Field Operations Officer, Georgia
Department of Corrections; TERENCE
KILPATRICK, Unit Manager, Telfair
State Prison; STEVE UPTON, Classification;
and SGT MIXON, Sergeant of CERT team,
Telfair State Prison; JACOB BEASLEY,

Unit Manager; PHILLIP HALL, Warden;
TELFAIR COUNTY,HELENA, GEORGIA;
RODNEY MCLEOD, Unit Manager;
GLEN JOHNSON, Warden Hancock State
Prison,
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. (Doc.
no. 56.) The Magistrate Judge recommended dismissal of Defendants Telfair County, Steve
Upton, Jacob Beasley, and Glen Johnson because Plaintiff failed to state a claim against
these Defendants, and allowed Plaintiffs deliberate indifference claims against Defendants

Fred Gammage, William Danforth, Robert Toole, Terrence Kilpatrick, Sgt. Mixon, Rodney

McCloud, and Phillip Hall to proceed. (Doc. no. 44.)

The Magistrate Judge also

recommended dismissal of Plaintiffs retaliation claim (doc. no. 37) and all claims for

monetary damages against remaining Defendants in their official capacities. Id
The majority of Plaintiffs objections merely reiterate the arguments raised in his

amended complaint. (See doc. nos. 38, 56, 58, 59.) Plaintiff objects to the dismissal of
Defendants Beasley and Johnson, providing unsubstantiated assertions that these Defendants

were deliberately indifferent. (S^ doc. no. 56.) The Magistrate Judge correctly determined

Plaintiffs conclusory allegations of deliberate indifference against Defendants Telfair

County, Steve Upton, Jacob Beasley, and Glen Johnson were insufficient to state a claim
against these Defendants, and Plaintiffs objections do not alter the conclusions reached by
the Magistrate Judge. Accordingly, the Court OVERRULES Plaintiffs objections.

In his objections. Plaintiff presents several new arguments and factual allegations in
support of his retaliation claim that were not present in his prior pleadings. (See doc. nos.
56, 58, 59.) While district courts have the discretion to consider novel evidence, factual

claims, and legal argument raised for the first time in an objection to an R&R,they are under

no obligation to do so. Williams v. McNeil. 557 F.3d 1287, 1292 (11th Cir. 2009)
(concluding district judge has broad discretion in considering argument not presented to

magistrate judge); see also United States v. Howell. 231 F.3d 615, 621 (9th Cir. 2000)
(holding district courts are not required to consider supplemental factual allegations

presented for first time in objections to magistrate judge's report and recommendation).
Plaintiffs failure to raise the newly presented facts prior to his objections is an independent

ground on which to overrule his objections. Sinclair v. Williams, No. CV614-072, 2015 WL

3480986, at *2(S.D. Ga. June 1, 2015)("Plaintiffs failure to raise any facts or issues prior
to his Objections is an independent ground upon which to overrule his objection.").
Even if the Court were to consider Plaintiffs new factual allegations in support of his

retaliation claim, Plaintiff is not entitled to relief. Under the First Amendment, prison
officials may not retaliate against inmates for filing lawsuits or administrative grievances.
Farrow v. West. 320 F.3d 1235, 1248 (11th Cir. 2003). A prisoner may state a cognizable §

1983 claim by alleging the actions of prison officials "that might not otherwise be offensive
to the Constitution" may be brought "within the scope ofthe Constitution by alleging that the

actions were taken in retaliation for filing lawsuits and administrative grievances." Wright v.
Newsome, 795 F.2d 964, 968 (11th Cir. 1986). In Bennett v. Hendrix. 423 F.3d 1247 (11th

Cir. 2005), the Eleventh Circuit clarified the standard for asserting a cognizable retaliation

claim: "A plaintiff suffers adverse action if the defendant's allegedly retaliatory conduct

would likely deter a person of ordinary firmness from exercise of First Amendment rights."
Id. at 1254. There must be a causal connection between the protected speech and the

retaliatory action. Id at 1250; O'Brvant v. Finch. 637 F.3d 1207, 1216-20(11th Cir. 2011).

Here, Plaintiff presents new factual allegations that prison officials retaliated against

him for filing grievances and the present litigation by providing a notation in his prison file

stating Plaintiff is one of the "top 200 most dangerous inmate[s] in Georgia's state prison
[system]." (Doc. no. 59, p. 2.) Plaintiff asserts this notation has deprived him of a transfer
to a safer prison. (Id)

First, has no constitutional right to be transferred from Telfair State Prison.

Tate

V. Brannen. No. 5:11-CV-249-WLS-MSH, 2012 WL 6968457, at *3 (M.D. Ga. Jan. 23,

2012), report and recommendation adopted. No. 5:ll-CV-249 WLS, 2013 WL 395976

(M.D. Ga. Jan. 31, 2013)("Plaintiff. . . had no constitutional right to be transferred from
BS?."); see also Adams v. James. 784 F.2d 1077,1079(11th Cir. 1986)("prison inmates do not
have a constitutionally protected right to remain at a particular penal institution"). Second, even
if this were a sufficiently adverse action. Plaintiff offers only a conclusory allegation the
notation was causally connected to his prison grievances or the present lawsuit. Without
more, this Court cannot infer a causal connection. In sum. Plaintiff has failed to state a
retaliation claim.

Accordingly, the Court OVERRULES Petitioner's objections, ADOPTS the Report

and Recommendation of the Magistrate Judge as its opinion, and DISMISSES Defendants
Telfair County, Glen Johnson, Steve Upton, and Jacob Beasley.

The Court also

DISMISSES Plaintiffs retaliation claim (doc. no. 37), and Plaintiffs claims for monetary

damages against all remaining Defendants in their official capacities.
SO ORDERED this

of

UNITED STA'

,2017, at Augusta, Georgia.

DISTRICT JUDGE