Dunn v. Hart et al
Filing
131
ORDER denying 129 Motion for Appointment. Signed by Magistrate Judge R. Stan Baker on 6/29/2016. (csr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
WAYCROSS DIVISION
CLEVELAND D. DUNN,
Plaintiff,
CIVIL ACTION NO.: 5:13-cv-131
v.
DARRELL HART, Warden, Ware State
Prison, et al.,
Defendants.
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, who is currently incarcerated at Dodge State Prison in Chester, Georgia, filed,
pursuant to Federal Rule of Civil Procedure 60(b)(1), a Motion for Reconsideration of this
Court’s Order of April 28, 2016, denying his Motion to Amend his Complaint. 1 (Doc. 128.)
Plaintiff has also filed a Motion for Appointment of Plaintiff’s Power of Attorney to be
Recognized as Plaintiff’s Agent, (doc. 129), in which Plaintiff requests that the Court direct all
Plaintiff’s legal documentation to a third party. For the reasons which follow, the Court should
DENY Plaintiff’s Motion for Reconsideration, (doc. 128). Further, the Court DENIES his
“Motion for Appointment,” (doc. 129).
BACKGROUND
Plaintiff filed this action, through his attorney, Tamika Hrobowski-Houston, on
December 9, 2013. He brought claims, pursuant to 42 U.S.C. § 1983, contesting conditions of
his confinement at Ware State Prison in Waycross, Georgia, and Calhoun State Prison in
Morgan, Georgia. (Doc. 1.) In his Complaint, Plaintiff alleged Eighth Amendment claims for
1
Though Plaintiff’s Motion is labeled as an “Objection” to the Court’s April 28, 2016 Order, a review of
Plaintiff’s Objection reveals that it is properly classified as a Motion for Reconsideration under Federal
Rule of Civil Procedure 60(b)(1).
failure to protect and medical deliberate indifference against numerous Georgia Department of
Corrections (“GDOC”) officials and employees arising out of an assault by a fellow inmate at
Ware State Prison and the subsequent medical care he received at Ware and Calhoun State
Prison. (Id.)
On December 18, 2015—seven months past the deadline on which Plaintiff could timely
amend his Complaint or add parties—Plaintiff filed a Motion to Amend his Complaint.
(Doc. 100.) Plaintiff sought to add a party and to amend his pleadings with additional Eighth
Amendment claims. Following Plaintiff’s Motion to Amend, he filed a Motion to Proceed Pro
Se on March 2, 2016, (doc. 117), and Plaintiff’s counsel filed a Motion to Withdraw on March 3,
2016, (doc. 118), both of which the Court granted. Attributing his failure to timely amend his
Complaint to add an additional party and claims to his attorney’s deficient performance
throughout the case, Plaintiff now requests that the Court reconsider its denial of his Motion to
Amend, (doc. 100).
DISCUSSION
I.
Motion for Reconsideration (Doc. 128)
Plaintiff contends that he failed to comply with the Court’s prior Order to add parties and
amend his claims by May 19, 2015, because his attorney failed to diligently pursue his case. (Id.
at p. 7.) Accordingly, Plaintiff avers that the Court should reconsider its prior Order and grant
his Motion to Amend, as he was not personally at fault for missing the deadline. (Id.) Labeling
his Motion as an “Objection to the Court’s Order of April 28, 2016,” Plaintiff moves the Court
under Federal Rule of Civil Procedure 60(b)(1) 2 to reconsider its prior Order, (doc. 127), and to
grant his Motion to Amend, (doc. 100).
2
“[A]lthough Rule 60(b) provides several grounds for a court to amend an earlier judgment, claims of
attorney error must be evaluated under subsection (60)(b)(1) rather than under the more general,
2
“On motion and just terms, the court may relieve a party . . . from a final judgment, order,
or proceeding for the following reasons:” “mistake, inadvertence, surprise, or excusable neglect.”
FED. R. CIV. P. 60(b)(1).
“Under Rule 60(b), [a] prisoner must prove ‘extraordinary
circumstances’ justifying the reopening of a final judgment.” Howell v. Sec’y, Fla. Dep’t of
Corr., 730 F.3d 1257, 1260 (11th Cir. 2013) (internal citation omitted). However, even if a
prisoner “demonstrate[s] that the circumstances are sufficiently extraordinary to warrant relief,”
“whether to grant the requested [Rule 60(b)] relief is . . . a matter for the district court’s sound
discretion.” Aldana v. Del Monte Fresh Produce N.A., Inc., 741 F.3d 1349, 1355 (11th Cir.
2014) (alteration in original) (internal citation omitted).
Generally, “clients must be held accountable for the acts or omissions of their attorneys.”
Pioneer Inv. Servs. Co. v. Brunswick Assocs., 507 U.S. 380, 396 (1993). There is “no merit to
the contention that dismissal of [a client’s] claim because of his counsel’s unexcused conduct
imposes an unjust penalty on the client.” Id. (quoting Link v. Wabash R.R. Co., 370 U.S. 626,
633–34, (1962)) (emphasis added). Therefore, plaintiff’s counsel’s failure to meet a deadline
rarely constitutes a “sufficiently extraordinary” circumstance to warrant Rule 60(b)(1) relief.
Nevertheless, the Supreme Court has stated that “excusable neglect is understood to encompass
situations in which the failure to comply with a filing deadline is attributable to negligence.” Id.
at 394. (emphasis added). “[W]hether a party’s neglect of a deadline may be excused is an
equitable decision turning on ‘all relevant circumstances surrounding the party’s omission.’”
Cheney v. Anchor Glass Container Corp., 71 F.3d 848, 850 (11th Cir. 1996) (quoting Pioneer,
507 U.S. at 395).
‘residual’ standard contained in 60(b)(6).” Bank of the Ozarks v. Prince Land, LLC, No. CV 212-013,
2013 WL 395132, at *1 (S.D. Ga. Jan. 31, 2013) (citing Solaroll Shade & Shutter Corp., Inc. v. Bio–
Energy Sys., Inc., 803 F.2d 1130, 1133 (11th Cir. 1986)).
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“To determine whether the neglect is excusable and justifies relief from a . . . [Court’s
Order], courts must consider the following four factors: (1) the danger of prejudice to the
opposing party; (2) the length of the delay and its potential impact on judicial proceedings; (3)
the reason for the delay, including whether it was within the control of the movant; and (4)
whether the movant acted in good faith.” Bohannon v. PHH Mortg. Corp., No. 1:12-CV-02477,
2015 WL 1137663, at *3 (N.D. Ga. Mar. 12, 2015) (citing Cheney, 71 F.3d at 850). “The
Eleventh Circuit has repeatedly ‘demonstrated its weariness of grants of Rule 60(b)(1) relief for
excusable neglect based on claims of attorney error.’” Bank of the Ozarks, 2013 WL 395132,
at *2 (quoting Cavaliere v. Allstate Ins. Co., 996 F.2d 1111, 1115 (11th Cir. 1993)). Here, there
are ample reasons to remain wary of granting Plaintiff’s requested relief from this Court’s Order,
(doc. 127).
First, as discussed in the Court’s Order denying Plaintiff’s Motion to Amend his
Complaint, “adding parties and claims at this late date would significantly and unduly prejudice
the actual Defendants as well as the proposed Defendants.” (Doc. 128, p. 5.) “[I]f the Court
were to allow Plaintiff’s amendment, the Court would have to reopen discovery and Defendants
would have to repeat discovery measures, such as depositions, which have already occurred.”
(Id.) Accordingly, vacating this Court’s prior Order would create a danger of prejudice to the
opposing party. Second, Plaintiff’s delay of seven months weighs against a finding of excusable
neglect. See S.E.C. v. Simmons, 241 F. App’x 660 (11th Cir. 2007) (holding that plaintiff’s
inexplicable delay of over four months in filing a motion to vacate default judgment precluded
relief under Rule 60(b)(1)). Third, Plaintiff contends that the reason for his seven-month delay
was his attorney’s failure to properly manage his case. While the Court appreciates that Plaintiff
has attempted to diligently pursue his case during the time in which he has proceeded as a pro se
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litigant, “clients must be held accountable for the acts or omissions of their attorneys.” Pioneer,
507 U.S. at 396. Neither Plaintiff nor his former counsel has offered any explanation regarding
his seven-month delay. Finally, as discussed in the Court’s Order denying Plaintiff’s Motion to
Amend, (doc. 127), it appears that Plaintiff’s counsel “attempted to conceal his undue delay in
bringing [a Motion to Amend] by relying on a prior Order of the Court pertaining to dispositive
motions only.” Plaintiff’s counsel’s questionable tactics for obtaining a motion for an extension
of time in which to file an untimely Motion to Amend counsels against a finding of good faith,
and, therefore, against a grant of relief pursuant to Rule 60(b)(1).
For all these reasons, Plaintiff has not shown that his failure to file a timely Motion to
Amend was attributable to excusable neglect. Consequently, Plaintiff has not shown that he is
entitled to relief under Rule 60(b)(1).
II.
Motion for Appointment
Plaintiff has also filed a “Motion for Appointment,” in which he requests that the Court
send his legal mail to Rhonda Lanae Thompson. Attached to his Motion, Plaintiff submitted a
notarized copy of a Power of Attorney granting Rhonda Lanae Thompson authority to manage
his legal affairs. On the record before it, the Court is unwilling to send Plaintiff’s papers to an
address where Plaintiff is not located. Additionally, the Court is wary of recognizing a nonattorney as an “agent” for Plaintiff in this litigation. Plaintiff is advised that the Clerk of Court
may only send mail to the address listed upon the docket of the case. Plaintiff has not filed a
Notice changing his address in this case. Further, it does not appear that Plaintiff has had
problems receiving recent pleadings in this case. Accordingly, at this time, Plaintiff’s Motion is
DENIED.
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CONCLUSION
Based on the foregoing reasons, it is my RECOMMENDATION that the Court DENY
Plaintiff’s Motion for Reconsideration of this Court’s April 28, 2016 Order, (doc. 128). His
“Motion for Appointment” (doc. 129), is DENIED.
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. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the pleading must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action.
Upon receipt of objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. The
Clerk of Court is DIRECTED to serve a copy of this Report and Recommendation upon Green.
SO ORDERED and REPORTED and RECOMMENDED, this 29th day of June,
2016.
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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