Mapp v. Georgia Department of Corrections et al

Filing 46

ORDER stating that the Court rejects the Magistrate Judge's Report and Recommendation. The Court orders plaintiff to file an amended complaint outlining the claims related to the October 23, 2008 incident. This amended complaint must be filed wi thin ten days of this Order re 38 REPORT AND RECOMMENDATIONS re 13 MOTION to Dismiss Pre-Answer Motion to Dismiss filed by Javanka Johnson, Steven Upton, Jamie Anderson, Alton Mobley, Dane Dasher, Joe Burnette, Trace Simmons, Rodney Jackson, Norris Herndon. Signed by Judge B. Avant Edenfield on 6/20/2011. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
AL RICO MAPP,
Plaintiff,
v.

Plaintiff does not object to the
Magistrate Judge’s recommended dismissal
of the Georgia Department of Corrections
under the Eleventh Amendment. See Doc.
38 at 7-8.
I. UNRELATED CLAIMS

6: 10-cv-90

GEORGIA DEPARTMENT OF
CORRECTIONS, JOE BURNETTE,
Deputy Warden, STEPHEN UPTON,
Warden, DANE DASHER, Deputy
Warden, OFFICER CARTER, OFFICER
CRABTREE; Lt. RODNEY JACKSON,
OFFICER NORRIS HERNDON,
OFFICER SIMMONS, OFFICER
ALTON MOBLEY, and OFFICER
JAMIE ANDERSON,
Defendants.
ORDER
After an independent and de novo
review, the Court concurs in part and rejects
in part the Magistrate Judge’s Report and
Recommendation (“R&R”). See Doc. 38.
Plaintiff objected to the Magistrate Judge’s
recommendations regarding the dismissal of
Plaintiff’s claims: (1) concerning any acts
unrelated to the October 23, 2008 attack; (2)
against Defendants Christopher Carter
(“Carter”) and Terry Crabtree (“Crabtree”);
(3) against Defendants Rodney Jackson
(“Jackson”), Norris Herndon (“Herndon”),
Javanka Johnson (“Johnson”), and Trace
Simmons (“Simmons”); (4) against
Defendants Stephen Upton (“Upton”) and
Dane Dasher (“Dasher”); and (5) against
Defendant Joe Burnette (“Burnette”). See
Doc. 43.

“Plaintiff’s allegations detail events
which allegedly occurred over a nearly 18
month time period,” and were allegedly
committed by separate groups of
individuals. See Doc. 27 at 2-3.
Persons “may be joined in one action as
defendants if:”
(A) any right to relief is asserted
against them jointly, severally, or
in the alternative with respect to or
arising out of the same transaction,
occurrence, or series of
transactions or occurrences; and
(B) any question of law or fact
common to all defendants will
arise in the action.
F ED. R. C IV. P. 20(a)(2).
But a plaintiff “may join, as independent or
alternative claims, as many claims as it has
against an opposing party.” F ED. R. C IV. P.
20(a)(2).
The Magistrate Judge advised Plaintiff
that his allegations concerning events
occurring on October 23, 2008, November
16, 2009, and March 20, 2010 were
unrelated because they were purportedly
committed by entirely different groups of
people. See Doc. 27. The Magistrate Judge
ordered Plaintiff “to advise the Court within
twenty (20) days of this Order which claim
or related claims Plaintiff wishes to pursue

in this cause of action.” See Doc. 27 at 3.
Plaintiff responded that he wished to pursue
his claims concerning the events occurring
on October 23, 2008, and November 16,
2009. See Doc. 30 at 1.

approach” to these joinder requirements.
See Doc. 24-1 at 19-21 (Plaintiff’s Response
to Motion to Dismiss). Defendants Alton
Mobley (Mobley”) and Jamie Anderson
(“Anderson”) are improperly joined.

The Magistrate Judge held that
Plaintiff’s response was improper because
“the Court ha[d] already informed Plaintiff
and counsel that these claims are unrelated.”
See Doc. 38 at 4. The Magistrate Judge then
presumed that Plaintiff would wish to pursue
only his claims “stemming from events
allegedly occurring on October 23, 2008.”
See id. at 11. The Magistrate Judge
recommended that Plaintiffs claims relating
to November 16, 2009, and March 20, 2010
be dismissed without prejudice. See id.

Plaintiff does sufficiently connect
Defendants Carter, Crabtree, Jackson,
Herndon, Simmons, Johnson, Upton, and
Dasher to Burnette with respect to the
October 2008 incident. See Doc. 8 at 4-5.
But for the reasons below, all of those
Defendants are dismissed from this suit.
Thus, Plaintiff is left with only his claims
against Burnette relating to the events
occurring on October 23, 2008.
Plaintiff’s claims relating to the events
of November 16, 2009, and March 20, 2010
are DISMISSED. See Doc. 8 at 9-25.

Plaintiff’s allegations center around the
alleged October 2008 attack. Also,
preserving this claim rather than either of
the later incidents maximizes Plaintiff’s
ability to later bring them within the statute
of limitations.

II. CARTER & CRABTREE

Plaintiff has not shown “good cause” to
excuse his failure to timely serve Carter and
Crabtree with copies of his Complaint. The
Court accepts counsel’s assertion that the
first names of these Defendants were
unknown at the time the Complaint was
filed, see Doc. 43 at 2; however, Plaintiff
and his counsel undoubtedly were aware of
the existence of a “Carter” and a “Crabtree”
on or before October 22, 2009, as evidenced
by the ante litem notice citing these
individuals’ names, which was hand
delivered and signed by counsel. See Doc.
1-1.

Plaintiff claims that the November 16,
2009 incident was in retaliation for his
reporting the October 2008 incident. See
Doc. 43 at 3-6. But to join all defendants
together in this suit, Plaintiff must plausibly
plead that he is seeking a right to relief
against the defendants “jointly, severally, or
in the alternative with respect to or arising
out of the same transaction, occurrence, or
series of transactions or occurrences” or that
“any question of law or fact common to all
defendants will arise in the action.” See
FED. R. C IV. P. 20(a)(2).

In addition, Defendants filed a Motion
for a More Definite Statement on January
11, 2011, and in that Motion, defense
counsel stated, “Defendants Christopher
Carter and Terry Crabtree are no longer
employees of the Department, and have not,

Plaintiff makes no argument that
common legal or factual questions will arise
in this action and asks instead for a “liberal
2

to counsel’s knowledge, been presented with
requests to waive service.” See Doc. 2-1 at
1 n. 1 (emphases added). There is no
evidence that counsel attempted to locate
these Defendants in the nearly year and a
half span between the filing of the ante litem
notice and the Magistrate Judge’s show
cause Order of April 7, 2011.

Plaintiff’s assault at the hands of another
inmate resulted in additional physical pain
was first raised in Plaintiff’s Response to
Defendants’ Motion to Dismiss, see Doc.
24-1 at 8-9, and the Court will not allow
Plaintiff to make an additional claim for
relief in response to a dispositive motion.
See Doc. 1 at 6; Doc. 8 at 5.

In short, counsel’s efforts to show “good
cause” to excuse the failure to serve
Crabtree and Carter are unavailing.
Plaintiff’s claims against Carter and
Crabtree, see Doc. 8, are DISMISSED.

Plaintiff’s claims against Jackson,
Herndon, Johnson, and Simmons, see Doc.
8, are DISMISSED.
IV. SUPERVISORS
The Magistrate Judge recommended that
the Court dismiss Plaintiff’s claims against
Upton and Dasher because “Plaintiff
[sought] to hold these Defendants liable
based solely on their supervisory positions.”
See Doc. 38 at 9. But “liability must be
based on something more than the theory of
respondeat superior.” Braddy v. Fla. Dep ’t
of Labor and Emp’t Sec., 133 F.3d 797, 801
(11th Cir. 1998). Plaintiff failed to plead
that illegal conduct was “sufficiently
widespread so as to put [Upton and Dasher]
on notice of the need to act and [they] failed
to do so.” See id. at 802.

III. JACKSON, HERNDON, JOHNSON,
& SIMMONS
Plaintiff objects to the Magistrate
Judge’s recommended dismissal of his
claims against Defendants Jackson,
Herndon, Johnson, and Simmons. Plaintiff’s
failure to protect claim cannot be sustained
based on general allegations that Georgia
State Prison (“GSP”) houses “the worst of
the worst” or that the inmates at GSP have
certain “propensities” which “should lead to
the conclusion that there is a strong
likelihood of such violent encounters.” See
Doc. 43 at 5.

Plaintiff’s claims against Upton and
Dasher, see Doc. 8, are DISMISSED.

On October 23, 2008, Defendants
Jackson, Herndon, Johnson, and Simmons
were not made aware that Plaintiff faced any
particular danger from another inmate,
specifically one who, as Plaintiff readily
admits, was hiding before he attacked
Plaintiff. See Doc. 8 at 4.

V. BURNETTE
The Magistrate Judge recommended that
the Court dismiss Plaintiff’s retaliation
claim against Burnette because Plaintiff’s
“slanderous statements” about Burnette were
not protected activity. See Doc. 38 at 9-10.
See Moton v. Cowart, 631 F.3d 1337, 1341
(11th Cir. 2005) (“An inmate must establish
three elements to prevail on a retaliation
claim . . . : (1) his speech or act was

Plaintiff expects more from Defendants
Jackson, Herndon, Johnson, and Simmons
than was constitutionally, or even
reasonably, required. Plaintiff’s assertion
that these Defendants’ intervention in
3

constitutionally protected; (2) the
defendant's retaliatory conduct adversely
affected the protected speech; and (3) there
is a causal connection between the
retaliatory actions and the adverse effect on
speech.”).

litigation. Plaintiff’s failure to re-assert such
a clearly protected activity, however,
portends that they do not.
This likely inaccuracy combined with
Plaintiff’s failure to appropriately respond to
the Magistrate Judge’s order to highlight the
related claims he wishes to pursue, and the
fact that the bulk of Plaintiff’s 27 pages of
allegations are dismissed, requires a clean
slate.

In his complaint, Plaintiff alleged that
Burnette retaliated against him for making
statements regarding an alleged affair
Burnette had with a married female
correctional officer. See Doc. 8 at 5, 10.
But Plaintiff also alleged that Burnette’s
actions were in retaliation for filing prior
grievances against Burnette. See id.; see
also Boxer X v. Harris, 437 F.3d 1107, 1112
(11th Cir. 2006) (“First Amendment rights
to free speech and to petition the
government for a redress of grievances are
violated when a prisoner is punished for
filing a grievance concerning the conditions
of his imprisonment”).

The Court ORDERS PLAINTIFF TO

FILE AN AMENDED COMPLAINT
OUTLINING ONLY HIS CLAIMS
RELATED TO BURNETTE ’S ACTIONS
AND ONLY AS THEY RELATE TO THE
ALLEGED OCTOBER 23, 2008
INCIDENT. PLAINTIFF MUST FILE
THIS AMENDED COMPLAINT WITHIN
TEN (10) DAYS FROM THE DATE OF
THIS ORDER.
Plaintiff is advised to carefully plead his
alleged protected activity that elicited
Burnette’s alleged retaliation in accordance
with Federal Rule of Civil Procedure 8(a).
See Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007); Ashcroft v. Iqbal, 129 S.
Ct. 1937, 1949 (2009) (claim must have
“facial plausibility”); see also F ED. R. C IV.
P. 11 (“By presenting to the court a pleading
. . . an attorney or unrepresented party
certifies that to the best of the person's
knowledge, information, and belief, formed
after an inquiry reasonable under the
circumstances . . . the factual contentions
have evidentiary support or, if specifically
so identified, will likely have evidentiary
support after a reasonable opportunity for
further investigation or discovery”).

Plaintiff makes no mention of these preOctober 23, 2008 grievances in his response
to Defendants’ motion to dismiss, see Doc.
24-1 at 16-19, or his objections to the
Magistrate Judge’s R&R, see Doc. 43 at 1012. Instead, Plaintiff argues that his gossip
concerning Burnette’s alleged affair is
protected activity and alone supports his
retaliation claim. See Doc. 43 at 10-12. But
neither party has cited a single case
addressing the issue of whether this is
protected activity. See Docs. 13-1 at 16-20,
24-1 at 16-19, 43 at 10-12, 45 at 15-16.
Plaintiff’s filing of a pre-October 2008
grievance would clearly be a protected
activity, see Boxer X, 437 F.3d at 1112, but
the Court cannot know whether such
grievances exist at this stage of the
4

VI. CONCLUSION
The Court concurs with the Magistrate
Judge’s R&R regarding Plaintiff’s claims
unrelated to the October 23, 2008 incident,
and against the Georgia Department of
Corrections, and Defendants Carter,
Crabtree, Jackson, Herndon, Johnson,
Simmons, Upton, and Dasher. Thus,
Plaintiff’s claims relating to the events of
November 16, 2009, and March 20, 2010,
and all allegations against the Georgia
Department of Corrections, and Defendants
Carter, Crabtree, Jackson, Herndon,
Johnson, Simmons, Upton, Dasher, Mobley,
and Anderson are DISMISSED. See Doc.
8.
The Court rejects the Magistrate Judge’s
R&R regarding Defendant Burnette. See
Doc. 38 at 9-10. The Court ORDERS

PLAINTIFF TO FILE AN AMENDED
COMPLAINT OUTLINING ONLY HIS
CLAIMS RELATED TO BURNETTE ’S
ACTIONS AND ONLY AS THEY
RELATE TO THE ALLEGED OCTOBER
23, 2008 INCIDENT. PLAINTIFF MUST
FILE THIS AMENDED COMPLAINT
WITHIN TEN (10) DAYS FROM THE
DATE OF THIS ORDER.
This 20th day of June 2011.

8

^AVANT6L; ^- 4-JUDGE I
'
^-B
PDENFIELØ,

I

UNFED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

5