ELLIS v. OLIVER et al

Filing 46

ORDER denying 38 Motion to Withdraw ; denying 40 Motion; denying 42 Motion for New Trial; denying 45 Motion to Strike. Signed by Judge Dudley H. Bowen on 09/14/2020. (maa)

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

U.s. DISTRICT COURT
AUGUSTA OlV.

DUBLIN DIVISION

2D2I! SEP 1M A 10= 00
JEROME ELLIS,
'A*

CLER

*

Plaintiff,

so.or^T. ^

~k
*

CV 320-033

V.
*

MS. OLIVER, Nurse Practitioner; *
DEPUTY WARDEN GIBBONS, Security; *
'k

ANTHONY CALDWELL, Warden;
MS. CARSWELL, Mail Officer;

k

k

MS. MESSER, Deputy Warden of

k

Administration; MS. BRAGGS,

k

Chief Counsel; AGENTS; JOHN

AND OR JANE DOES, Johnson State

k

Prison; JOHN AND OR JANE DOES,

k

Medical Administrator; and

k
k

OFFICER THOMAS,

k
■k

Defendants.

ORDER

Ellis's

Before the Court are pro se Plaintiff Jerome
to

withdraw

signature

perpetuate testimony
no.

to

42) ,
cross

//

r/

(doc.

(doc.

no.

no.

38 ) ,

40) ,

\\

\\

motion

and

motion to strike testimony's

oral

examination

ff

(doc.

no.

notice

45) .

\\

motion

disposition

for new

trial

ff

to

(doc.

for failure to submit
These

submissions

were

filed after the Court adopted the United States Magistrate Judge's
Report and Recommendation that Plaintiff's case be dismissed under

28

U.S.C.

j udgment.

§

1915(g) 's

\\

three

strikes

For the following reasons,

//

rule

and

the

entry

the motions are denied.

of

In

the

motion

to

withdraw

signature,

Plaintiff

cites
w

Federal Rule of Civil Procedure 36 and asks the Court to

to

withdraw

[his] signature off paper work [he] signed with counsel Roland on
8-12-20 at Johnson State Prison in relation to protential respond
//

(sic) from Forsyth GA. to grievance [he] filed .
remainder

of

the

motion

reiterates

.

Plaintiff's

The

substantive

arguments and states objections to the Report and Recommendation .
A request to withdraw an admission under Rule 36, substantive
arguments, and objection to the Report and Recommendation are all
untimely
unclear

at this
from

withdraw

his

stage

which

in

the

document

signature.

case.

or

Besides,

admission

Accordingly,

it

is

Plaintiff

Plaintiff's

entirely

wishes

to

motion

to

withdraw signature (doc. no. 38) is DENIED.
Plaintiff's second filing attempts to set forth a claim for
deliberate indifference to
demand for jury trial.

his

medical

needs,

even including a

To the extent Plaintiff intends to assert

a new claim, filing a motion in this case is not the proper vehicle
to

do so.

To the extent Plaintiff intends to support the merits

of his initial claim, the time to do so has passed.^

Plaintiff's

second filing (doc. no. 40) is therefore DENIED.

1 The Report and Recommendation advised Plaintiff that should he
wish "to proceed with the claims raised in this case, he should be
required to initiate a new lawsuit, which would require submission
of a new complaint.
Dupree v. Palmer, 284 F.3d 1234, 1236 (11th
Cir. 2002)." (Doc. No. 25.)

2

Next,

Plaintiff moves for a new trial pursuant to Rules 15,

However, certain grounds must be met for relief to be

59, and 60.

Plaintiff's

granted under Rules 59 or 60.2

forth any grounds or argument for relief.

motion

does

not

set

Therefore, Plaintiff's

motion for new trial (doc. no. 42) is DENIED.

Finally,

Plaintiff

moves

to

strike

the

testimony

of

all

Defendants, apparently on the grounds that he was unable to cross
examine them.

three

strikes

examination.

in

Plaintiff's Complaint was dismissed pursuant to the

a

civil

rule

well

before

any

opportunity

for

cross

Besides, there is no right to cross examine witnesses

case.

See

Leatherwood

v.

Anna's

Linens

Co.,

384

F.

App'x 853, 856 (11th Cir. 2010) (citing Birt v. Montgomery, 690,
702

n.2

(11th

Cir.

1983)) .

Accordingly, Plaintiff's motion to

strike (doc. no. 45) is DENIED.

ORDER ENTERED at Augusta, Georgia, this 14^h day of September,
2020.

UNITEDyST^TES DISTRICJ>^DGE "

2 Rule 15 governs the amendment and supplementation of pleadings,
and

to the

extent

Plaintiff

moves

request is untimely.
3

to

amend

his

pleadings

his