BELL v. LAMB et al

Filing 75

ORDER granting 73 Motion for Extension of Time to file objections to the Report and Recommendation; denying 73 Motion to Appoint Counsel ; denying 74 Motion to add a retaliation claim. Signed by District Judge R. Stan Baker on 3/30/21. (wwp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
SPENCER JERROD BELL,
Plaintiff,

CIVIL ACTION NO.: 6:17-cv-12

v.
MATT LAMB, et al.,
Defendants.
ORDER
Before the Court are Plaintiff Spencer Jerrod Bell’s Motion for an Extension of Time to
Respond to the Magistrate Judge’s Report and Recommendation, (doc. 73), his Motion for
Appointment of Counsel, (id.), and his Motion to Add a Retaliation Claim, (doc. 74). For the
following reasons, the Court GRANTS the Motion for an Extension of Time, (doc. 73), DENIES
the Motion for Appointment of Counsel, (id.), and DENIES the Motion to Add a Retaliation
Claim, (doc. 74).
BACKGROUND
On September 13, 2016, while incarcerated at Emanuel County Jail, Plaintiff argued about
moving to a different cell block, which caused jail staff to physically restrain Plaintiff and relocate
him to the different cell block, efforts that Plaintiff resisted. (Doc. 64-2, pp. 1–3; doc. 64-9, pp.
13–23.) Plaintiff saw a doctor three days later regarding injuries sustained during the September
13 altercation. (Doc. 64-9, p. 27.)
Plaintiff, proceeding pro se, filed this suit on December 27, 2016, in the United States
District Court for the Middle District of Georgia under 42 U.S.C. § 1983, and the case was

subsequently transferred to this Court. (Docs. 1, 6, 7.) Plaintiff then amended his original
Complaint several times. (Docs. 5, 10, 14, 15, 18, 23.) Plaintiff asserted claims against Matt
Lamb, Felicia Brown, Faye Clifton, Matt Riner, Emanuel County Jail, Sheriff Tyson Stephens,
and Dewayne McKinney, alleging that they violated his Eighth Amendment and Fourteenth
Amendment rights during the September 13, 2016, incident. (Docs. 18, 23.) The Magistrate Judge
completed the frivolity review pursuant to 28 U.S.C. § 1915 and allowed Plaintiff’s Eighth
Amendment excessive force claim against Defendants Lamb, McKinney, and Riner to proceed.
(Docs. 21, 29.) The Magistrate Judge also allowed Plaintiff to proceed on his Eighth Amendment
deliberate indifference to serious medical needs claim against Defendants Brown, Clifton, Lamb,
Riner, and Stephens. (Docs. 21, 29.) Defendants then moved for summary judgment as to all of
Plaintiff’s remaining claims.

(Doc. 64.)

The Magistrate Judge issued a Report and

Recommendation (R&R) recommending that the Court grant summary judgment because Plaintiff
failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act.
(Doc. 70, pp. 5–9.) The Magistrate Judge also explained that Plaintiff’s claims would fail on the
merits and recommended denying Plaintiff leave to appeal in forma pauperis. (Id. at pp. 9–19.)
Finally, the Magistrate Judge ordered “any party seeking to object to this [R&R] to file specific
written objections within 14 days of the date on which this [R&R] is entered.” (Id. at p. 20.) No
parties filed objections to the R&R, and after conducting an independent and de novo review of
the entire record, the Court adopted the R&R on April 8, 2020, and directed the Clerk of Court to
close the case. (Doc. 71.) The Court entered judgment on April 14, 2020. (Doc. 72.)
On June 8, 2020, nearly two months after the Court adopted the R&R and entered judgment
against him, Plaintiff filed the at-issue Motion, asking the Court “for more time to respond and
object” to the R&R and for the Court to “appoint [him] a lawyer due to [him] being housed at

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Bulloch County Jail without access to discovery.” (Doc. 73, p. 1.) According to Plaintiff, he was
transferred to Bulloch County Jail and did not receive notice of the R&R until May 25, 2020, when
he called home. (Id.) Finally, on July 14, 2020, Plaintiff filed a “Motion to Add [a] Retaliation
Claim,” asking the Court to “add [a] retaliation claim to [his] complaint against Emanuel County
Jail.” (Doc. 74, p. 1.) In this Motion, Plaintiff stated that on December 17, 2019, while being
“transported to court by Emanuel County from Bulloch County Jail,” he was placed in the back of
the transport van with an unnamed inmate who he had a physical altercation with at Emanuel
County Jail in 2016. (Id.) According to Plaintiff, this inmate “is known as a high rank[ing] gang
member by Emanuel County, [and his] life was seriously put in harm[’s way] by Emanuel County
Jail.” (Id.)
DISCUSSION
I.

Motion for Extension of Time
The Court first addresses Plaintiff’s Motion for Extension of Time. (Doc. 73.) In this

Motion, Plaintiff asks the Court “for more time to respond and object” to the R&R. (Id. at p. 1.)
Plaintiff asserts that he did not receive notice of the R&R in time to respond and object because
his address changed. (Id.) According to Plaintiff, he was “being housed at Bulloch County Jail,”
which only allowed “postcards to come in from family,” and he “assumed [he] would’ve been
out[,] but the coronavirus threw the situation [there] back further.” (Id.) Plaintiff then stated that
he needs “more time to object because [he] just got notice of any mail from [D]efendants [on] May
25, 2020,” when he “called home.” (Id.)
The Court construes this Motion as a motion to reconsider under Federal Rule of Civil
Procedure 60(b). 1 Under Rule 60(b), a court may
“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

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relieve a party . . . from a final judgment, order, or proceeding for the following
reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b); (3) fraud . . .,
misrepresentation, or misconduct by an opposing party; (4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged . . .; or (6) any other
reason that justifies relief.
Fed. R. Civ. P. 60(b).
Here, the Magistrate Judge issued the R&R on March 6, 2020. (Doc. 70.) The Court
adopted the R&R on April 8, 2020, (doc. 71), and entered Judgment on April 14, 2020, (doc. 72.)
Plaintiff explains that he did not receive notice of the R&R until May 25, 2020, because he was
moved to Bulloch County Jail; however, he did file this Motion for an Extension of Time soon
after becoming aware of the R&R. (Doc. 73, p. 1.) Because Plaintiff’s lack of response was due
to a change in address and because Plaintiff acted promptly to seek additional time once he learned
of the error, the Court finds that Plaintiff should have to opportunity to respond and object to the
R&R. See, e.g., Lawson v. Speight, No. 1:17-cv-118, 2018 WL 1463360, at *1 (S.D. Ga. Mar.
23, 2018) (vacating judgment after plaintiff established that he did not receive a copy of the report
and recommendation). Accordingly, the Court GRANTS Plaintiff’s Motion. (Doc. 73.) Plaintiff
may file objections to the R&R within thirty (30) days from the entry of this Order. However,
because Plaintiff did not file any objections with his Motion, the Court will not vacate its Order
adopting the Report and Recommendation at this time. For the time being, that Order will remain
the Order of the Court, and this case shall remain CLOSED. Should Plaintiff file timely
objections, the Court will consider Plaintiff’s objections on the merits and assess what effect, if
any, those objections have on the Court’s Order adopting the Report and Recommendation.
F. App’x 962, 964 (11th Cir. 2007) (per curiam) (quoting Castro v. United States, 540 U.S. 375, 381
(2003)). “They 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 381).
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II.

Motion for Appointment of Counsel
Within Plaintiff’s Motion for an Extension of Time, Plaintiff also asked the Court to

appoint him counsel because he is incarcerated “without access to discovery” and “lack[s] legal
education.” (Doc. 73, p. 1.) In a civil case, a plaintiff does not have a constitutional right to the
appointment of counsel. Wright v. Langford, 562 F. App’x 769, 777 (11th Cir. 2014) (per curiam)
(citing Bass v. Perrin, 170 F.3d 1312, 1320 (11th Cir. 1999)). While a court may appoint counsel
for an indigent plaintiff, it has “broad discretion in making this decision.” 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 (11th Cir.
1990) (citing Poole v. Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987); Wahl v. McIver, 773 F.2d
1169, 1174 (11th Cir. 1985)). The United States Court of Appeals for 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) (per curiam) (quoting Kilgo v. Ricks, 983 F.2d 189, 193 (11th
Cir. 1993)).
Here, the Court does not find any “exceptional circumstances” that warrant the
appointment of counsel. While the Court understands that Plaintiff is incarcerated and lacks legal
education, “prisoners do not receive special consideration notwithstanding the challenges of
litigating a case while incarcerated.” Hampton v. Peeples, No. 6:14-cv-104, 2015 WL 4112435,
at *2 (S.D. Ga. July 7, 2015). Nothing about Plaintiff’s claims indicates that they are “so novel or
complex as to require the assistance of a trained practitioner,” and additionally, Plaintiff witnessed

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the events he is complaining about. Fowler, 899 F.2d at 1096. The Eleventh Circuit has
consistently affirmed district courts’ denials of motions for appointment of counsel in cases similar
to Plaintiff’s. See Wright, 562 F. App’x at 777 (“[Plaintiff], like any other pro se litigant, would
likely have benefited from the assistance of a lawyer, but his deliberate-indifference and excessive
force claims were not so unusual that the district court abused its discretion by refusing to appoint
counsel.”); Burgess v. Bradshaw, 626 F. App’x 257, 259–60 (11th Cir. 2015) (per curiam)
(“[Plaintiff] has not shown an abuse of discretion in the denial of his request for counsel. His
claims for relief at trial, which involved allegations of excessive use of force and failure to
intervene, were neither novel nor complex.”); Watkins v. Broward Sheriff’s Office, 771 F. App’x
902, 907 (11th Cir. 2019) (per curiam) (“[Plaintiff’s] claims for relief, which involved allegations
of excessive force and false arrest, were neither novel nor complex, and his claims involved
incidents that he witnessed himself.”); but see Smith v. Fla. Dep’t of Corr., 713 F.3d 1059, 1065
(11th Cir. 2013) (“[Plaintiff] alleged a widespread practice of retaliatory transfers by the FDOC,
not simply incidents he personally experienced. The discovery issues and the suspect conduct of
the FDOC also hindered the plaintiff’s ability to present the essential merits of his case. . . . [Thus,]
this case presents exceptional circumstances that necessitate appointment of counsel.”) (internal
citation omitted). Furthermore, Plaintiff’s lack of legal education—standing alone—does not
constitute an exceptional circumstance warranting the appointment of counsel. See Brown v.
Wilcher, No. 4:21-cv-27, 2021 WL 411508, at *1 (S.D. Ga. Feb. 5, 2021) (denying appointment
of counsel even though plaintiff lacked a legal education); Wood v. Housewright, 900 F.2d 1332,
1335 (9th Cir. 1990) (affirming district court’s refusal to appoint counsel even though plaintiff had
limited access to a law library and did not have a legal education); Riley v. Vizcarra, No. 3:18-cv2911-JAH-AHG, 2020 WL 4336271, at *3 (S.D. Cal. July 28, 2020) (“[L]imited access to the law

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library and unfamiliarity with the law are circumstances common to most incarcerated plaintiffs
and do not establish exceptional circumstances.”). Based on the foregoing, the Court DENIES
Plaintiff’s Motion for Appointment of Counsel. (Doc. 73.)
III.

Motion to Add a Retaliation Claim
Plaintiff also filed a Motion to Add a Retaliation Claim in which Plaintiff seeks to “add [a]

retaliation claim to [the] [C]omplaint against Emanuel County Jail.” (Doc. 74, p. 1.) The Court
construes this Motion as a motion to amend under Federal Rule of Civil Procedure 15(a). As an
initial matter, because this matter is currently closed and final judgment has been entered, Plaintiff
cannot reopen this lawsuit by amending an already dismissed complaint. Therefore, Plaintiff’s
Motion must be denied. Moreover, as explained below, the Court would deny Plaintiff’s Motion
even if this case were still active.
Under Rule 15(a), a party may amend its pleading once as a matter of course within twentyone days after service. Fed. R. Civ. P. 15(a)(1)(A). Plaintiff dated his Motion June 30, 2020, over
two months after the Court granted Defendants’ Motion for Summary Judgment, adopted the
Magistrate Judge’s R&R, and directed the Clerk of Court to close Plaintiff’s case, and, thus, long
after the deadline prescribed by Rule 15(a)(1). (Doc. 74, p. 2.) Accordingly, Plaintiff’s only option
to amend is through Rule 15(a)(2), which states that “a party may amend its pleading only with
the opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2).
“As a general rule, leave to amend under [Rule 15(a)(2)] is given freely.” Bryant v. United
States, No. 1:16-cv-25, 2017 WL 1591884, at *1 (S.D. Ga. May 1, 2017) (citing Foman v. Davis,
371 U.S. 178, 182 (1962); Wedemeyer v. Pneudraulics, Inc., 510 F. App’x 875, 878 (11th Cir.
2013) (per curiam)). However, leave to amend is not guaranteed as “a trial court may deny such
leave ‘in the exercise of its inherent power to manage the conduct of litigation before it.’” Id.

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(quoting Reese v. Herbert, 527 F.3d 1253, 1263 (11th Cir. 2008)). “In making this determination,
a court should consider whether there has been undue delay in filing, bad faith or dilatory motives,
prejudice to the opposing parties, and the futility of the amendment.” Saewitz v. Lexington Ins.
Co., 133 F. App’x 695, 699 (11th Cir. 2005) (per curiam) (quoting Local 472 of United Ass’n of
Journeymen & Apprentices of Plumbing & Pipefitting v. Ga. Power Co., 684 F.2d 721, 724 (11th
Cir. 1982)). Furthermore, “where a party’s motion to amend is filed after the deadline for such
motions, as delineated in the court’s scheduling order, the party must show good cause why leave
to amend the complaint should be granted.” Smith v. Sch. Bd. of Orange Cnty., 487 F.3d 1361,
1366 (11th Cir. 2007): see also Fed. R. Civ. P. 16(b)(4).
Here, the Magistrate Judge’s Scheduling Notice set the filing deadline for motions to
amend or add parties as April 28, 2018, more than two years before Plaintiff filed his Motion.
(Doc. 39, p. 1.) Thus, Plaintiff must satisfy Rule 16(b)’s good cause requirement. See Smith, 487
F.3d at 1366. However, Plaintiff made no effort in his Motion to show good cause, nor did he
mention Rule 16(b) and its requirements. (See doc. 74.) Thus, Plaintiff has not shown good cause.
See Smith, 487 F.3d at 1367 (noting that a party must indicate with specificity the good cause he
had for his untimely motion to amend); Govan v. Yale Carolinas, Inc., No. 1:15-CV-624-VEH,
2015 WL 12979095, at *1–2 (N.D. Ala. Dec. 29, 2015) (denying plaintiff’s motion to amend when
plaintiff “fail[ed] to cite Rule 16 at all in his motion, and [made] no attempt to argue ‘good
cause.’”).
Even assuming good cause exists, the Court would still reject Plaintiff’s request to add a
retaliation claim because adding the claim would be futile. “An inmate raises a constitutional
claim of retaliation if he establishes that the prison disciplined him for filing a grievance or lawsuit
concerning the conditions of his imprisonment.” Smith v. Fla. Dep’t of Corr., 318 F. App’x 726,

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728 (11th Cir. 2008) (per curiam) (citing Wildberger v. Bracknell, 869 F.2d 1467, 1468 (11th Cir.
1989)). “To establish a claim for retaliation, the inmate must show a causal connection between
his protected conduct and the harm complained of.” Id. (citing Farrow v. West, 320 F.3d 1235,
1248–49 (11th Cir. 2003)). Here, Plaintiff alleges that he was “placed in the back of [a] transport
van” with an inmate who he had a previous “physical altercation” and that his “life was seriously
put in harm[’s way] by Emanuel County Jail.” (Doc. 74, p. 1.) However, Plaintiff does not allege
that prison officials placed Plaintiff next to the unnamed inmate in an attempt to harass, threaten,
or retaliate against him for filing his lawsuit or for any other reason. (See id.) Moreover, while
Plaintiff asserts that Emanuel County Jail placed his life in harm’s way, Emanuel County Jail is
no longer a party to this suit, (see doc. 29), and Plaintiff does not identify which Defendants, if
any, placed him in the van with the unnamed inmate or which Defendants Plaintiff is asserting this
new claim against, (see doc. 74). Furthermore, Plaintiff may not assert unrelated claims in one
civil action. Smith v. Owens, 625 F. App’x 924, 928–29 (11th Cir. 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”). Plaintiff has not plausibly alleged that the claim he seeks to add is sufficiently
related to his claims in this lawsuit. For all of these reasons, the Court DENIES Plaintiff’s Motion
to Add a Retaliation Claim. (Doc. 74.)
CONCLUSION
In light of the foregoing, the Court GRANTS Plaintiff’s Motion for Extension of Time.
(Doc. 73.) However, the Court DENIES the Motion for Appointment of Counsel, (doc. 73), and
the Motion to Add a Retaliation Claim, (doc. 74). Plaintiff may file his objections to the R&R

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within thirty (30) days from entry of this Order. This case shall remain CLOSED unless and
until the Court orders otherwise.
SO ORDERED, this 30th day of March, 2021.

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

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