Slaughter v. Bryson et al

Filing 74

ORDER ADOPTING 61 Report and Recommendations of the Magistrate Judge as the opinion of the Court. The Court OVERRULES Plaintiff's 71 Objections, and GRANTS in part and DENIES in part Defendants' 41 Motion to Dismiss 69 Motion to Dismiss. The Court DENIES Plaintiff's 67 Motion to Appoint Counsel, and GRANTS Defendant Swords and Stewart's 69 Motion to Join Defendants' Motion to Dismiss. Signed by Judge Lisa G. Wood on 7/23/2018. (ca)

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Bts^tritt Court

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FILED
Scott L. Poff, Clerk
United States District Court

By casbell at 12:03 pm, Jul 23, 2018

DAVID MICHAEL SLAUGHTER,
CIVIL ACTION NO.: 5:15-cv-90

Plaintiff,
V.

TOM GRAMIAK,et al..
Defendants.

ORDER

This matter is before the Court on the Magistrate Judge's

March 20, 2018 Report and Recommendation.

Dkt. No. 61.

In the

Report and Recommendation, the Magistrate Judge recommended that
the Court grant in part and deny in part Defendants' Motion to
Dismiss, dkt. no. 41, filed on behalf of Defendants Gramiak,

Johnson, Crosby, Nunn, Kicklighter, Brad, Pratt, Cox, Adams,
Jenkins, and the Georgia Department of Corrections.

Following

the Report and Recommendation, Defendants Swords and Stewart
filed a Motion to Join Defendants' Motion to Dismiss.

69.

Dkt. No.

Additionally, Plaintiff lodged Objections to the Report and

Recommendation, dkt. no. 67, but, after being directed by the
Court to indicate whether he opposed Defendants Swords and

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Stewart's Motion, dkt. no. 69, Plaintiff filed a Response that

did not oppose this Motion, dkt. no. 71.^
After an independent and de novo review of the entire
record, the undersigned concurs with the Magistrate Judge's

Report and Recommendation as supplemented herein.

Accordingly,

the Court OVERRULES Plaintiff's Objections and ADOPTS the

Magistrate Judge's Report and Recommendation as the opinion of
the Court.

Thus, for the reasons and in the manner set forth by

the Magistrate Judge, the Court GRANTS in part and DENIES in

part Defendants' Motion to Dismiss. Dkt. No. 41.

Additionally,

the Court DENIES Plaintiff's request for appointment of counsel
contained in Plaintiff's Objections.

Further, the Court GRANTS

Defendant Swords and Stewart's Motion to Join Defendants' Motion
to Dismiss.

^

Dkt. No. 69.

Although Plaintiff entitled this pleading a ''Motion for Leave to

Amend," the Court's review reveals that this pleading opposes
Defendant Bennett's currently pending Motion to Dismiss, dkt. no. 66,
and does not propose any amendments.
Dkt. No. 71.
"Federal courts
sometimes will ignore the legal label that a pro se litigant attaches
to a motion and recharacterize the motion in order to place it within
a different legal category."
Retic v. United States, 215 F. App'x
962, 964 {11th Cir. 2007) (per curiam) (quoting Castro v. United
States, 540 U.S. 375, 381 (2003)). Federal courts "may do so in order
to avoid an unnecessary dismissal, to avoid inappropriately stringent
application of formal labeling requirements, or to create a better
correspondence between the substance of a pro se motion's claim and
its underlying legal basis."
Id. (quoting Castro, 540 U.S. at 38182). Accordingly, in order to accurately reflect the contents of this
pleading, the Court AUTHORIZES and DIRECTS the Clerk of Court to
update the docket and label this pleading as a "Response in Opposition
to Defendant Bennett's Motion to Dismiss."

I.

Plaintiff's Objections to the Report and Recommendation
Plaintiff, who is disabled, objects to the recommended

dismissal of his Americans with Disabilities Act C'ADA") claim

for injunctive relief as to an allegedly unsafe walkway he was
subjected to while an inmate at Ware State Prison in Waycross,
Georgia.

Id.

Plaintiff also complains of allegedly unsafe

ambulatory conditions and ADA violations at Georgia State Prison
in Reidsville, Georgia, the prison he was transferred to after

being incarcerated at Ware State Prison, and at Coastal State
Prison in Garden City, Georgia, where he is presently
incarcerated.

Id.

As to Coastal State Prison, Plaintiff

additionally claims that the showers there are in "dire need of
repair" and are not suitably maintained for disabled inmates.
Id.

However, as noted by the Magistrate Judge, objections to a

report and recommendation are not a proper vehicle "through
which to make new allegations or present additional evidence."

Dkt. No. 61, p. 62; see also Williams v. McNeil, 557 F.3d 1287,
1290-91 (11th Cir. 2009) (determining that a district court does
not abuse its discretion when it refuses to consider arguments

not presented to the magistrate judge).

Plaintiff's Objections

improperly raise new and unrelated claims regarding Georgia
State Prison and Coastal State Prison that cannot be asserted in

his present cause of action regarding the conditions of his

confinement at Ware State Prison.

Moreover, contrary to

Plaintiff's understanding, the Magistrate Judge did not

recommend the outright dismissal of Plaintiff's ADA claims.
Rather, the Magistrate Judge correctly found that Plaintiff's
claims for injunctive relief as to the walkway at Ware State

Prison were moot in light of Plaintiff s transfer to a different

facility.

See Wahl v. Mclver, 773 F.2d 1169, 1173-74 (llth Cir.

1985) (per curiam).

Accordingly, for the reasons stated by the Magistrate
Judge, the Court and GRANTS in part and DENIES in part
Defendants' Motion to Dismiss, dkt. no. 41.

The Court DISMISSES

all of Plaintiff's remaining claims against Defendants Hitter,
Pratt, Cox, Adams, Jenkins, and Crosby.

The Clerk of Court

shall reflect on the docket that these five Defendants are
TERMINATED as Defendants in this case.

The Court DISMISSES

Plaintiff s failure to intervene claim against Defendant Brad;
DISMISSES Plaintiff's deliberate indifference to serious medical

needs claims against Defendants Gramiak and Johnson; DISMISSES
Plaintiff's deliberate indifference to health and safety claims

against Defendants Nunn, Kicklighter, and Brad; and DISMISSES as
moot Plaintiff's claim for injunctive relief as to the
challenged walkway.

Plaintiff's other Eighth Amendment claims against
Defendants Nunn, Kicklighter, Brad, Gramiak, and Johnson, First

Amendment claims against Defendants Gramiak and Johnson, and

Americans with Disability Act claims against Defendant Georgia
Department of Corrections shall remain pending before the Court.
II.

Plaintiff s Motion to i^point Counsel

In his Objections, Plaintiff also moves for the appointment
of counsel.

Plaintiff states that he ''is suffering from PTSD

and depression due to the original filing and doesn't have the
mental capacity to continue arguments in his case."

67, p. 2.

Dkt. No.

In this civil case. Plaintiff has no constitutional

right to the appointment of counsel.

Wright v. Langford, 562 F.

App'x 769, 777 (llth Cir. 2014) (per curiam) (citing Bass v.
Perrin, 170 F.3d 1312, 1320 (llth Cir. 1999)).

"Although a

court may, pursuant to 28 U.S.C. § 1915(e)(1), appoint counsel

for an indigent plaintiff, it has broad discretion in making
this decision, and should appoint counsel only in exceptional
circumstances."

Id. (citing Bass, 170 F.3d at 1320).

Appointment of counsel in a civil case is a "privilege that is
justified only by exceptional circumstances, such as where the
facts and legal issues are so novel or complex as to require the
assistance of a trained practitioner."

Fowler v. Jones, 899

F.2d 1088, 1096 (llth Cir. 1990) (citing Poole v. Lambert, 819
F.2d 1025, 1028 (llth Cir. 1987); Wahl v. Mclver, 773 F.2d 1169,
1174 (llth Cir. 1985)).

The Eleventh Circuit Court of Appeals

has explained that "the key" to assessing whether counsel should

be appointed ^""is whether the pro se litigant needs help in
presenting the essential merits of his or her position to the
court.

Where the facts and issues are simple, he or she usually

will not need such help."

McDaniels v. Lee, 405 F. App'x 456,

457 (11th Cir. 2010) (per curiam) (quoting Kilgo v. Ricks, 983
F.2d 189, 193 (11th Cir. 1993)).
The Court has reviewed the record and pleadings in this

case and finds no ^'exceptional circumstances" warranting the

appointment of counsel.

While the Court understands that

Plaintiff is incarcerated and is currently suffering from mental

distress, this Court has repeatedly found that "prisoners do not

receive special consideration notwithstanding the challenges of
litigating a case while incarcerated."

Hampton v. Peeples, No.

CV 614-104, 2015 WL 4112435, at *2 (S.D. Ga. July 7, 2015).

"Indeed, the Eleventh Circuit has consistently upheld district
courts' decisions to refuse appointment of counsel in 42 U.S.C.
§ 1983 actions similar to this case for want of exceptional

circumstances."

Id. (citing Smith v. Warden, Hardee Corr.

Inst., 597 F. App'x 1027, 1030 (11th Cir. 2015); Wright, 562 F.

App'x at 777; Faulkner v. Monroe Cty. Sheriff's Dep't, 523 F.
App'x 696, 702 (11th Cir. 2013); McDaniels, 405 F. App'x at 457;
Sims V. Nguyen, 403 F. App'x 410, 414 (11th Cir. 2010); Fowler,
899 F.2d at 1091, 1096; and Wahl, 773 F.2d at 1174).

This case

is not so complex legally or factually to prevent Plaintiff from

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presenting ^'the essential merits of his position" to the Court,
notwithstanding his current mental state.

In fact. Plaintiff's

Objections offer proof of his continued ability to present his
case to the Court.

For these reasons, the Court DENIES

Plaintiff's Motion to Appoint Counsel.
III. Defendants Swords and Stewart's Motion to Join Defendants'
Motion to Dismiss Dkt. No. 69

As noted in the Magistrate Judge's Report and
Recommendation, Defendants' Motion to Dismiss was not filed on
behalf of several Defendants in this case, including Defendants

Swords and Stewart.

Dkt. No. 61, p. 1 n.l.

The Court set aside

Defendants Swords and Stewart's default, dkt. no. 68, and these

Defendants now move to join and incorporate fully the subject
Motion to Dismiss, dkt. no. 69.

Defendants Swords and Stewart

contend that Plaintiff s factual allegations against Defendants

Nunn and Kicklighter, who were included in the Magistrate

Judges' recommended dismissal, are ^^essentially the same" as the
allegations against them.

Dkt. No. 69, p. 2.

Thus, Swords and

Stewart seek to incorporate and advance Nunn and Kicklighter's
arguments for dismissal.

Id.

The Court directed Plaintiff to respond to this Motion as

well as Defendant Bennett's pending Motion to Dismiss, dkt. nos.

66, 70, and Plaintiff duly responded, dkt. no. 71.

Plaintiff's

Response, while opposing Defendant Bennett's pending Motion,

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does not indicate any opposition to Defendants Swords and
Stewart's Motion to Join.

Id.

Instead, Plaintiff takes issue

with these Defendants earlier untimely response and default,

id., which the Court already determined should be set aside,
dkt. no. 68.

Even if Plaintiff had directly opposed Defendant

Swords and Stewart's Motion to Join Defendants' Motion to

Dismiss, Swords and Stewart's Motion is due to be granted for
the reasons and in the manner set forth by the Magistrate

Judge's Report and Recommendation, dkt. no. 61, pp. 28-31, 3238, 52-53.

Under a Rule 12(b)(6) motion to dismiss, a court must

''accept[] the allegations in the complaint as true and
constru[e] them in the light most favorable to the plaintiff."

Belanger v. Salvation Army, 556 F.3d 1153, 1155 (11th Cir.
2009).

"A complaint must state a facially plausible claim for

relief, and '[a] claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the

misconduct alleged.'"

Wooten v. Quicken Loans, Inc., 626 F.3d

1187, 1196 (11th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)). "A pleading that offers labels and conclusions
or a formulaic recitation of the elements of a cause of action"

does not suffice.

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Ashcroft, 556 U.S. at 678.

'^The plausibility standard is not akin to a probability
requirement, but it asks for more than a sheer possibility that
a defendant has acted unlawfully.

Where a complaint pleads

facts that are merely consistent with a defendant's liability,

it stops short of the line between possibility and plausibility
of entitlement to relief."

punctuation omitted).

Id. (citation and internal

While a court must accept all factual

allegations in a complaint as true, this tenet ''is inapplicable
to legal conclusions.

Threadbare recitals of the elements of a

cause of action, supported by mere conclusory statements," are
insufficient.

Id.

At frivolity review, the Court found Plaintiff to have
stated plausible excessive force and deliberate indifference
claims against Defendants Swords and Stewart.
10-11, 12-16, 21; Dkt. No. 29.

Dkt. No. 12, pp.

In their Motion to Join,

Defendants Swords and Stewart seek to incorporate the following

arguments previously advanced on behalf of Defendants Nunn and
Kicklighter in the earlier Motion to Dismiss: failure to state
deliberate indifference to health and safety claims regarding

the unsafe walkway at Ware State Prison; failure to state
deliberate indifference to serious medical claims; and qualified

immunity.^

Dkt. No. 69, pp. 2-3.

The Magistrate Judge

^
They, however, do not move to dismiss the excessive force claim
currently pending against them. Dkt. No. 69, p. 2 n.2.
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recommended the Court deny Defendant Nunn and Kicklighter's
earlier Motion to Dismiss as to the serious medical needs claims

and qualified immunity as to these claims, but grant it as to
the health and safety claims.

Dkt. No. 61, pp. 2, 28-31, 32-38,

52-53.

A thorough review of Plaintiff's Complaint, dkt. nos. 1,

17, and the two subject Motions clearly shows that Plaintiff's
allegations against Defendants Swords and Stewart exactly

parallel those made against Defendants Nunn and Kicklighter.
Indeed, Plaintiff alleges Defendants Swords and Stewart acted in
concert with Defendants Nunn and Kickligter in attacking him and

denying him medical care following the attack.

Id.

Likewise,

as with Defendants Nunn and Kickligher, Plaintiff fails to

allege facts which show that Defendants Swords and Stewart had
the requisite subjective knowledge of Plaintiff's concerns about
the allegedly unsafe walkway.

Id.

Accordingly, the Court

GRANTS Defendant Swords and Stewart's Motion to Join Defendants'
Motion to Dismiss.

Dkt. No. 69.

As such, and for the reasons and in the manner set forth by

the Magistrate Judge in his March 20, 2018 Report and
Recommendation, the Court DISMISSES Plaintiff s deliberate
indifference to health and safety claims against Defendants
Swords and Stewart, see dkt. no. 61, pp. 32-38.

However,

Plaintiff's excessive force and deliberate indifference to

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10

serious medical needs claims against these Defendants shall

remain pending before the Court, see id. at 25-26, 28-32, 52-53.
CONCLUSION

For the reasons and in the manner stated herein, the Court

OVERRULES Plaintiff's Objections, dkt. no. 71, ADOPTS the

Magistrate Judge's Report and Recommendation as the opinion of
the Court, dkt. no. 61, and GRANTS in part and DENIES in part
Defendants' Motion to Dismiss, dkt. no. 41.

Further, the Court

DENIES Plaintiff's Motion to Appoint Counsel, dkt. no. 67, and
GRANTS Defendant Swords and Stewart's Motion to Join Defendants'

Motion to Dismiss, dkt. no. 69.

For the purpose of clarity, the Court notes that the
following claims and Defendants remain before the Court:
• Plaintiff's Eighth Amendment claims (excessive force)

against Defendants Nunn, Kicklighter, Swords, and
Stewart;

• Plaintiff's Eighth Amendment claims (deliberate
indifference to serious medical needs) against

Defendants Nunn, Kicklighter, Swords, Stewart, and
Brad;

• Plaintiff's Eight Amendment claims (deliberate
indifference to health and safety) against Defendants
Gramiak and Johnson;

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Plaintiff's First Amendment claims (failure to stop)

against Defendants Gramiak and Johnson;
Plaintiff's Americans with Disability Act claims

against Defendant Georgia Department of Corrections.^

SO ORDERED, this

^ ^X'^ayXof / v/V'vyl / 2018.

HON. LI^ GODB"E^^UfiLQaLlr--^jynGE
UNITED /STATES DISTRICT COURT
SOUTHERN

^

DISTRICT OF GEORGIA

Plaintiff also has Eighth Amendment claims (failure to intervene and

deliberate indifference) that remain against Defendant Bennett.
Dkt.
Nos. 12, 29, 61.
As noted above. Defendant Bennett has a Motion to
Dismiss currently pending.

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Dkt. No. 66.

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