Porter v. Shumake et al

Filing 22

ORDER denying Plaintiff's 18 Motion to Strike Defendants' Motion to Dismiss. Signed by Magistrate Judge R. Stan Baker on 4/22/2016. (csr)

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

RONTRAVIOUS PORTER,
Plaintiff,

CIVIL ACTION NO.: 6:15-cv-113

v.
SGT. RONNIE SHUMAKE; CO II
DOTTSON; CO II SAPP; and CO II
CAMBPELL,
Defendants.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This matter is before the Court on numerous Motions filed by the Plaintiff and
Defendants. For the reasons set forth below, the Court DENIES Plaintiff’s Motion to Amend his
Complaint, (doc. 17), GRANTS Plaintiff’s Motion for an Extension of Time to File a Response
to Defendants’ Motion to Dismiss, (doc. 15), and DENIES Plaintiff’s Motion for Counsel, (doc.
16). Additionally, the Court DENIES Plaintiff’s Motion to Strike or Stay Defendants’ Motion to
Dismiss, (doc. 18), and I RECOMMEND that the Court DENY Plaintiff’s Motion for a
Preliminary Injunction, (doc. 18). Lastly, the Court GRANTS Defendants’ Motion to Stay,
(doc. 14).
BACKGROUND
Plaintiff, an inmate at Georgia State Prison, filed this action, pro se, pursuant to 42
U.S.C. § 1983. He claims that, on October 28, 2013, Defendants, correctional officers at the
Prison, used excessive force against him. On January 13, 2016, the Court conducted a frivolity

review of Plaintiff’s Complaint and recommended dismissal of his official capacity claims but
ordered that the Complaint be served on Defendants. (Doc. 9.) After being served with the
Complaint, Defendants filed a Motion to Dismiss Plaintiff’s claims in their entirety on March 23,
2016. (Doc. 13.) They claim that Plaintiff failed to exhaust his administrative remedies. (Id.)
Concurrently with that Motion, Defendants moved to stay discovery. (Doc. 14.) Plaintiff then
filed a series of Motions in the case. He moved for an extension of time to respond to the
Motion to Dismiss, (doc. 15), for appointment of counsel, (doc. 16), and to Amend his
Complaint, (doc. 17). Plaintiff also filed a Motion titled “Motion for Preliminary Injunction;
Motion to Strike or Stay Defendant Motion to Dismiss; Alternatively, Plaintiff’s Partial
Response to Defendant Motion to Dismiss.” (Doc. 18.)
DISCUSSION
I.

Plaintiff’s Motion to Amend (Doc. 17)
In his Motion to Amend, Plaintiff seeks to add numerous new claims and Defendants to

this case. (Doc. 17.) Generally, he claims that these proposed Defendants have denied him
access to legal materials. He claims that, if prison officials had provided him proper access to a
law library, then he would have learned about the requirement that he exhaust his administrative
remedies before filing suit. (Doc. 17-1, p. 2.) He contends that, due to his inability to access
legal resources, he is unable to research authorities to rebut Defendants’ Motion to Dismiss. (Id.
at 3.) He also claims that he cannot research the elements of his claim and assess what facts are
necessary to state a cause of action. Id.
Federal Rule of Civil Procedure 15(a)(2) directs that “[t]he court should freely give leave
[to amend pleadings] when justice so requires.” Thus, generally, a district court should afford a
plaintiff at least one opportunity to amend a complaint in order to correct deficiencies. Langlois

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v. Traveler’s Ins. Co., 401 F. App’x 425, 426 (11th Cir. 2010) (citing Corsello v. Lincare, Inc.,
428 F.3d 1008, 1014 (11th Cir. 2005)). “Ordinarily, if the underlying facts or circumstances
relied upon by a plaintiff may be a proper subject of relief, leave to amend should be freely
given.” Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1262 (11th Cir. 2004) (quotations and
citations omitted). An exception to this rule exists, however, “(1) where there has been undue
delay, bad faith, dilatory motive, or repeated failure to cure deficiencies by amendments
previously allowed; (2) where allowing amendment would cause undue prejudice to the opposing
party; or (3) where amendment would be futile.” Bryant v. Dupree, 252 F.3d 1161, 1163 (11th
Cir. 2001).
Plaintiff’s proposed amendment to his Complaint would be futile for several reasons.
“Access to the courts is clearly a constitutional right, grounded in the First Amendment, Article
IV of the Privileges and Immunities Clause, the Fifth Amendment, and/or the Fourteenth
Amendment.” Chappell v. Rich, 340 F.3d 1279, 1282 (11th Cir. 2003) (citing Christopher v.
Harbury, 536 U.S. 403, 415 n.12 (2002)). However, not every denial of access to the Courts will
give rise to a Section 1983 claim. Rather, the Eleventh Circuit has stated the following regarding
access to courts claims alleging that an inmate does not have access to a law library:
‘[T]he fundamental constitutional right of access to the courts requires prison
authorities to . . . provid[e] prisoners with adequate law libraries or adequate
assistance from persons trained in the law.’ Bounds v. Smith, 430 U.S. 817, 828
(1977). The Supreme Court, however, has clarified that prisoners’ contentions of
deprivations of access to courts must show actual injury as a ‘constitutional
prerequisite.’ Lewis v. Casey, 518 U.S. 343, 351 (1996); see Weaver v. Brenner,
40 F.3d 527, 533 (2d Cir. 1994) (recognizing that, when judicial decisions
subsequently delineate that a right that generally appeared to exist at the time of
the government official’s conduct did not actually exist, then “the conduct will
not subject the official to liability”). While Bounds guarantees the right of access
to the courts under the Fourteenth Amendment, prisoners have no inherent or
independent right of access to a law library or to legal assistance. See Lewis, 518
U.S. at 349–51. Instead, they must show actual injury in the pursuit of specific

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types of nonfrivolous cases: direct or collateral attacks on sentences and
challenges to conditions of confinement. Id. at 355–57. ‘Impairment of any other
litigating capacity is simply one of the incidental (and perfectly constitutional)
consequences of conviction and incarceration.’ Id. at 355.
Wilson v. Blankenship, 163 F.3d 1284, 1290 (11th Cir. 1988).
With respect to access-to-court claims, Lewis clarifies that a plaintiff first must show
actual injury before seeking relief under Bounds. See Bass v. Singletary, 143 F.3d 1442, 1444
(11th Cir. 1998). This essential standing requirement means that prison officials’ actions that
allegedly violate an inmate’s right of access to the courts must have impeded the inmate’s pursuit
of a non-frivolous, post-conviction claim or civil rights action. See id. at 1445. To prevail, a
plaintiff must provide evidence of such deterrence, such as a denial or dismissal of a direct
appeal, habeas petition, or civil rights case that results from actions of prison officials. See id. at
1446. Therefore, in an access-to-courts claim, “a plaintiff cannot merely allege a denial of
access to a law library or adequate attorney, even if the denial is systemic.” Sabers v. Delano,
100 F.3d 82, 84 (8th Cir. 1996) (per curiam). Rather, a plaintiff must demonstrate that the lack
of a law library or inadequate access to counsel hindered his “efforts to proceed with a legal
claim in a criminal appeal, postconviction matter, or civil rights action seeking to vindicate basic
constitutional rights.” Id.
Plaintiff has failed to set forth any factual allegations detailing his pursuit of a nonfrivolous, post-conviction matter or a civil rights action which has been thwarted by his inability
to access a law library. Plaintiff claims that the lack of access to legal materials has made it
difficult for him to prosecute this action. However, regardless of that alleged difficulty, this
action is still pending. Consequently, under Bounds and its progeny, Plaintiff has not shown any

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actual injury as to his legal access claim. As such, even if he were allowed to amend his
Complaint to assert those claims, that amendment would be futile.
Moreover, Plaintiff’s claims regarding the denial of legal access are unrelated to his
claims already asserted in this action. Through his original Complaint, Plaintiff claims that the
existing Defendants used excessive force against him on October 28, 2013. (Doc. 1.) The facts
underlying his proposed amended claims are far removed in time and subject from those events.
Plaintiff cannot pursue unrelated claims in one Section 1983 Complaint. Smith v. Owens, No.
14-14039, 2015 WL 4281241, at *4 (11th Cir. July 16, 2015) (upholding this Court’s dismissal
of unrelated claims pursuant to Federal Rule of Civil Procedure 20(a), which will allow the
joinder of claims if the claims arise “out of the same transaction, occurrence, or series of
transactions or occurrences” and if “any question of law or fact common to all defendants will
arise in the action.”). Other than the fact that they both allegedly arose at GSP, Plaintiff’s
excessive force claims and his denial of access to legal materials claims have no relation to one
another. These claims involve entirely different transactions, facts, and occurrences, as well as
legal standards. Accordingly, they cannot be pursued in the same action.
For all of these reasons, the Court DENIES Plaintiff’s Motion to Amend.
II.

Plaintiff’s Motion for Extension of Time (Doc. 15)
The Court GRANTS Plaintiff’s Motion for additional time to respond to Defendants’

Motion to Dismiss. Plaintiff shall have twenty-one days from the date of this Order to file his
response to Defendants’ Motion.

Additionally, the Court provides instructions to Plaintiff

regarding Defendants’ Motion to Dismiss, which Plaintiff is urged to follow.
A motion to dismiss is dispositive in nature, meaning that the granting of a motion to
dismiss results in the dismissal of individual claims or an entire action. Consequently, the Court

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is reluctant to rule on the Motion to Dismiss without receiving a response from the Plaintiff or
ensuring that Plaintiff is advised of the potential ramifications caused by his failure to respond.
Once a motion to dismiss is filed, the opponent should be afforded a reasonable opportunity to
respond to or oppose such a motion. This Court must consider that the Plaintiff in this case is a
pro se litigant. Haines v. Kerner, 404 U. S. 519, 520 (1972). Additionally, when a defendant or
defendants file a motion to dismiss, the court must construe the complaint liberally in favor of
plaintiff, taking all facts alleged by the plaintiff as true, even if doubtful in fact. Bell Atlantic
Corp. v. Twombly, 550 U.S. 554, 555 (2007).
The granting of a motion to dismiss without affording the plaintiff either notice or any
opportunity to be heard is disfavored. Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1336–37 (11th
Cir. 2011). A local rule, such as Local Rule 7.5 of this court, 1 should not in any way serve as a
basis for dismissing a pro se complaint where, as here, there is nothing to indicate plaintiff ever
was made aware of it prior to dismissal. Pierce v. City of Miami, 176 F. App’x 12, 14 (11th Cir.
2006).
Accordingly, Plaintiff is hereby ORDERED to file any response in opposition to the
Defendants’ motion for a dismissal or to inform the court of his decision not to oppose
Defendants’ motion within twenty-one (21) days of the date of this Order. Tazoe, 631 F.3d
at 1336 (advising that a court can not dismiss an action without employing a fair procedure).

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Local Rule 7.5 states,
Unless . . . the assigned judge prescribes otherwise, each party opposing a motion shall
serve and file a response within fourteen (14) days of service of the motion, except that in
cases of motions for summary judgment the time shall be twenty-one (21) days after
service of the motion. Failure to respond shall indicate that there is no opposition to a
motion.

(emphasis added).

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Should Plaintiff not timely respond to Defendants’ motion, the Court will determine that Plaintiff
does not oppose to the motion, and may dismiss this action. See Local Rule 7.5.
To assure that Plaintiff’s response is made with fair notice of the requirements of the
Federal Rules of Civil Procedure regarding motions to dismiss, generally, and motions to dismiss
for failure to state a claim upon which relief may be granted, the Clerk of Court is hereby
instructed to attach a copy Federal Rules of Civil Procedure 41 and 12 to the copy of this Order
that is served on the Plaintiff.
III.

Plaintiff’s Motion for Appointment of Counsel (Doc. 16)
In this civil case, Plaintiff has no constitutional right to the appointment of counsel.

Wright v. Langford, 562 F. App’x 769, 777 (11th Cir. 2014) (citing Bass v. Perrin, 170 F.3d
1312, 1320 (11th 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.” Wright, 562 F. App’x at 777 (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 (11th Cir. 1990) (citing Poole v. Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987), and Wahl
v. McIver, 773 F.2d 1169, 1174 (11th Cir. 1985)). The Eleventh Circuit 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) (quoting Kilgo v. Ricks, 983 F.2d 189, 193 (11th Cir. 1993)).

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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, 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 v. Lee, 405 F. App’x 456, 457 (11th Cir. 2010); Sims v. Nguyen,
403 F. App’x 410, 414 (11th Cir. 2010); Fowler, 899 F.2d at 1091, 1096; Wahl, 773 F.2d at
1174). This case is not so complex legally or factually to prevent Plaintiff from presenting “the
essential merits of his position” to the Court.
For these reasons, Plaintiff’s Motion for Appointment of Counsel is DENIED.
IV.

Plaintiff’s Motion for a Preliminary Injunction and Motion to Strike or Stay
Defendants’ Motion to Dismiss (Doc. 18)
In his Motion for a Preliminary Injunction, Plaintiff requests that the Court order prison

officials to provide him with various legal materials. (Doc. 18, pp. 2–3.) To be entitled to a
temporary restraining order or preliminary injunction, a plaintiff must demonstrate: (1) a
substantial likelihood of ultimate success on the merits; (2) that a restraining order or injunction
is necessary to prevent irreparable injury; (3) that the threatened injury outweighs the harm that
the restraining order or injunction would inflict on the other party; and (4) that the restraining
order or injunction would not be adverse to the public interest. Schiavo ex rel. Schindler v.

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Schiavo, 403 F.3d 1223, 1225–26 (11th Cir. 2005). Similarly, a plaintiff requesting a permanent
injunction must satisfy the following four-factor test:
(1) that [the plaintiff] has suffered an irreparable injury; (2) that remedies
available at law, such as monetary damages, are inadequate to compensate for that
injury; (3) that, considering the balance of hardships between the plaintiff and
defendant, a remedy in equity is warranted; and (4) that the public interest would
not be disserved by a permanent injunction.
eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). Thus, “[t]he standard for a
permanent injunction is essentially the same as for a preliminary injunction except that the
plaintiff must show actual success on the merits instead of a likelihood of success.” Siegel v.
LePore, 234 F.3d 1163, 1213 (11th Cir. 2000) (Carnes, J., dissenting). In either case, an
“injunction is an extraordinary and drastic remedy not to be granted unless the movant clearly
established the ‘burden of persuasion’ as to the four requisites.” Horton v. City of Augustine,
272 F.3d 1318, 1326 (11th Cir. 2001).
If a plaintiff succeeds in making such a showing, then “the court may grant injunctive
relief, but the relief must be no broader than necessary to remedy the constitutional violation.”
Newman v. State of Ala., 683 F.2d 1312, 1319 (11th Cir. 1982). Accordingly, where there is a
constitutional violation in the prison context, courts traditionally are reluctant to interfere with
prison administration and discipline, unless there is a clear abuse of discretion. See Procunier v.
Martinez, 416 U.S. 396, 404–05 (1974) (“Traditionally, federal courts have adopted a broad
hands-off attitude toward problems of prison administration [because] . . . courts are ill equipped
to deal with the increasingly urgent problems of prison administration and reform.”), overruled
on other grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989). In such cases, “[d]eference to
prison authorities is especially appropriate.” Newman, 683 F.2d at 1320–21 (reversing district
court’s injunction requiring release of prisoners on probation because it “involved the court in

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the operation of the State’s system of criminal justice to a greater extent than necessary” and less
intrusive equitable remedy was available).
Plaintiff’s request for a Preliminary Injunction pertains to his proposed denial of legal
access claims. As explained above, while Plaintiff attempts to assert those claims in this action
by way of his Amended Complaint, he cannot do so. Because those claims are not before the
Court, the Court obviously cannot grant Plaintiff preliminary injunctive relief on the claims.
Moreover, the proposed defendants responsible for providing Plaintiff access to legal materials
are not Defendants Shumake, Dottson, Sapp, and Cambell, the only defendants properly before
the Court. Because the Defendants that would be responsive to the preliminary injunction are
not parties to this action, this Court lacks jurisdiction to enter any restraining order or injunction
against them. See In re Infant Formula Antitrust Litig., MDL 878 v. Abbott Labs., 72 F.3d 842,
842–43 (11th Cir. 1995) (stating that district court lacks subject-matter jurisdiction to issue
preliminary or permanent injunction against nonparty). Moreover, at this point, Plaintiff has not
established a substantial likelihood of ultimate success on the merits of his claims. For these
reasons, I RECOMMEND that the Court DENY Plaintiff’s Motion for a Preliminary Injunction.
In his Motion to Stay or to Strike Defendants’ Motion to Dismiss, Plaintiff once again
cites his lack of access to a law library. (Doc. 18, p. 4.) He contends that he cannot respond to
Defendants’ arguments because of his lack of legal materials. However, he then goes on to offer
a partial response in which he cites several legal authorities. Id. Plaintiff has not provided any
grounds to stay a ruling on Defendants’ Motion, much less to strike the Motion. However, as
laid out above, the Court has given Plaintiff additional time to respond to the Motion to Dismiss.
Accordingly, Plaintiff’s Motion to Stay or Strike Defendants’ Motion to Dismiss is DENIED.

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Additionally, and in an abundance of caution, the Court DIRECTS counsel for
Defendants to contact the administration at Georgia State Prison within five days of the date of
this Order and to ensure that Plaintiff is receiving the access to legal materials and authorities
that the Department of Corrections’ operating procedures require an inmate such as Plaintiff to
receive. The Court offers no opinion as to whether Plaintiff has received inadequate access to
legal materials date. Nonetheless, the Court directs counsel to take this precautionary measure to
ensure that Plaintiff has an opportunity to fairly litigate this action.
V.

Defendants’ Motion to Stay (Doc. 14)
With regard to the timing of discovery, the Court of Appeals for the Eleventh Circuit has

recognized that
[i]f the district court dismisses a nonmeritorious claim before discovery has
begun, unnecessary costs to the litigants and to the court system can be
avoided. Conversely, delaying ruling on a motion to dismiss such a claim
until after the parties complete discovery encourages abusive discovery and, if
the court ultimately dismisses the claim, imposes unnecessary costs. For these
reasons, any legally unsupported claim that would unduly enlarge the scope of
discovery should be eliminated before the discovery stage, if possible.
Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1368 (11th Cir. 1997) (footnotes omitted).
For these reasons, this Court, and other courts within the Eleventh Circuit, routinely find good
cause to stay the discovery period where there is a pending motion to dismiss. See, e.g., Habib v.
Bank of Am. Corp., No. 1:10-cv-04079-SCJ-RGV, 2011 WL 2580971, at *6 n.4 (N.D. Ga. Mar.
15, 2011) (citing Chudasama, 123 F.3d at 1368) (“[T]here is good cause to stay discovery
obligations until the District Judge rules on [the defendant’s] motion to dismiss to avoid undue
expense to both parties.”); Berry v. Canady, No. 2:09-cv-765-FtM-29SPC, 2011 WL 806230, at
*1 (M.D. Fla. Mar. 2, 2011) (quoting Moore v. Potter, 141 F. App’x 803, 807 (11th Cir. 2005))

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(“[N]either the parties nor the court have any need for discovery before the court rules on the
motion [to dismiss].”).
In the case at hand, the Court finds good cause exists to stay this case until such time as a
ruling is made on Defendants’ Motion and that no prejudice will accrue to the parties if
Defendants’ request is granted. Specifically, a ruling on Defendants’ Motion to Dismiss before
the commencement of discovery may save the parties time and resources by clarifying what
issues the parties will need to address in discovery.

THEREFORE, IT IS HEREBY

ORDERED that all proceedings, including discovery, are stayed pending a ruling by the Court
on Defendants’ Motion to Dismiss, at which time a discovery schedule will be entered as to any
claims that may remain. This ruling does not affect Plaintiff’s obligation to file a response to
Defendants’ Motion to Dismiss.
CONCLUSION
For the reasons set forth above, the Court DENIES Plaintiff’s Motion to Amend his
Complaint, (doc. 17), GRANTS Plaintiff’s Motion for an Extension of Time to File a Response
to Defendants’ Motion to Dismiss, (doc. 15), and DENIES Plaintiff’s Motion for Counsel, (doc.
16). Additionally, the Court DENIES Plaintiff’s Motion to Strike or Stay Defendant’s Motion to
Dismiss, (doc. 18), and GRANTS Defendants’ Motion to Stay, (doc. 14).
Further, I RECOMMEND that the Court DENY Plaintiff’s Motion for a Preliminary
Injunction, (doc. 18). The Court ORDERS any party seeking to object to that Recommendation
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 Complaint 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

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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. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.
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. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final
judgment entered by or at the direction of a District Judge.
SO ORDERED, this 22nd day of April, 2016.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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