DAKER v. BRYSON et al
Filing
42
ORDER adopting 30 Report and Recommendations; granting 32 Motion for copy of 22 Order and civil rights forms; finding as moot 32 Motions for Extension of Time; denying 32 Motion for Reconsideration re to provide photocopies from Defenda nt; denying 33 Motion for Reconsideration and overrules Plaintiffs 34 Objections to the 08/14/2017 Order; denying 35 Motion for Extension of Time to File Response/Reply; denying 36 Motion, 39 Motion to Appoint Counsel, 40 Motion for H earing, and 41 Motion to Amend/Correct; finding as moot 7 Motion for Partial Summary Judgment, 7 Motion for Preliminary Injunction, 7 Motion for TRO, 8 Motion for Partial Summary Judgment, 8 Motion for Preliminary Injunction and Mo tion for TRO, 10 Motion for Partial Summary Judgment, 10 Motion for Permanent Injunction and Motion for Preliminary Injunction, 11 Motion for Partial Summary Judgment/ Motion for Permanent Injunction/ Motion for Preliminary Injunction, [12 ] Motion, 13 Motion for Preliminary Injunction/ Motion for TRO, 14 Motion for Preliminary Injunction/Motion for TRO and 15 Motion for Preliminary Injunction/Motion for TRO. This court dismisses Plaintiff's Complaint without prejudice and this case stands closed. Signed by Chief Judge J. Randal Hall on 12/06/2017. (jlh) Modified on 12/6/2017 (jlh).
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
WASEEM DAKER,
Plaintiff,
CIVIL ACTION NO.: 6:17-cv-79
MARTY ALLEN, et al., individually and in
their official capacities,
Defendants.
ORDER
Presently before the Court are Plaintiffs Objections to the Magistrate Judge's Report and
Recommendation dated September 18, 2017, (doc. 30), and nine (9) other pleadings Plaintiff has
filed since the Magistrate Judge issued his Report and Recommendation. (Docs. 37, 32-36, 38-
41.) In this action, the Court has provided Plaintiffwith the opportunity to amend his Complaint
to state related claims against related Defendants and instructions regarding how to prosecute his
claims within the confines of the Federal Rules of Civil Procedure and pertinent precedent.
Rather than take advantage of that opportunity, Plaintiff has continued to disregard the Court's
directives throughout his pleadings. For instance, in his most recent pleading, Plaintiff seeks to
assert more unrelated claims, and he names Defendants that the United States District Court for
the Middle District of Georgia already dismissed before that court transferred this case to this
District.
Accordingly, for the reasons set forth below, the Court OVERRULES Plaintiffs
Objections, (doc. 37), and ADOPTS the Magistrate Judge's September 18, 2017, Report and
Recommendation as the opinion of the Court. The Court DISMISSES without prejudice
Plaintiffs Complaint, DISMISSES as moot Plaintiffs Motions which were pending at the time
the Magistrate Judge issued his Report and Recommendation, (docs. 7, 8, 10, 11-15), and
DIRECTS the Clerk of Court to CLOSE this case and enter the appropriate judgment of
dismissal. The Court DENIES Plaintiff leave to proceed informa pauperis on appeal.
Additionally, the Court LIFTS the stay imposed by Order dated September 18, 2017.
The Court further: GRANTS in part, DENIES in part, and DISMISSES as moot in part
Plaintiffs "Miscellaneous" Motion, (doc. 32); DENIES Plaintiffs Motion for Reconsideration,
(doc. 33); OVERRULES Plaintiffs Objections to the August 14, 2017, Order, (doc. 34);
DENIES Plaintiffs Motion to Stay and Motion for Access to Case Authorities, (docs. 35, 36);
OVERRULES Plaintiffs Objections to the July 20, 2017, Order, (doc. 38); DENIES Plaintiffs
Motion to Appoint Counsel, (doc. 39); DENIES Plaintiffs Motion for Evidentiary Hearing and
to Subpoena Plaintiffs Medical Records, (doc. 40); and DENIES Plaintiffs Motion to Exceed
the Ten-Page Limit on Amended Complaint, (doc. 41).
BACKGROUND
Plaintiff brings his Complaint pursuant to 42 U.S.C. § 1983 and the Religious Land Use
and Institutionalized Persons Act, 42 U.S.C. § 2000cc-l, et seq., ("RLUIPA"). In his Complaint,
Plaintiff lays out a number of claims regarding the conditions of his imprisonment at Georgia
State Prison.
First, he generally alleges that Defendants violated his constitutional rights and the
RLUIPA. Plaintiff asserts he is an adherent to the Islamic religion, and "Defendants' policies
and customs" are leading to the denial of his participation in religious celebrations and feasts,
access to other religious components, and forced compliance with shaving procedures, which
includes exposureto unsanitary clippers. (Doc. 1, pp. 11, 17-18.)
Plaintiff additionally contends "Defendants" placed him in the Tier II program in April
2016 without providing advanced notice or an opportunity to present testimony or evidence
against his placement, in violation of due process. (Id at pp. 14-15.) Plaintiff also contends that
the Tier II program consists of three (3) different phases, that he was placed in these different
phases as recently as November 29, 2016, and that he was denied due process protections each
time. (Id. at pp. 14-16.)
Moreover, Plaintiff maintains he has been diagnosed with allergy and sinus problems and
is on medication for these problems.
Plaintiff states he has been suffering with ongoing
toothaches and pains. (Id at p. 20.) However, Plaintiff asserts "Defendants" deny inmates in the
Tier II program and those inmates who are indigent Sensodyne toothpaste, which Defendant
Geiger instructed Plaintiff to use. (Id.)
Plaintiff also filed Motions to Proceed in Forma Pauperis and several other Motions.
(Docs. 2, 7-8, 10-15, 16.) The District Court for the Middle District of Georgia transferred
Plaintiffs case to this Court after conducting a review of Plaintiff s Complaint and dismissing
Plaintiffs claims against any Defendant residing within the Middle District of Georgia.
(Doc. 17.)
This Court deferred ruling on Plaintiffs Motions to Proceed in Forma Pauperis and the
numerous other Motions Plaintiff filed by Order dated July 20, 2017. (Doc. 21.) In that same
Order, the Court deferred its requisite frivolity review of Plaintiffs Complaint. The Court
directed Plaintiff to amend his Complaint and to submit the appropriate form on which to move
to proceed in forma pauperis within fourteen (14) days of that Order. (Id at p. 2.) The Court
advised Plaintiff his claims were not related to each other and that he must set forth allegations in
his Amended Complaint indicating that his constitutional and/or statutory rights had been
violated and by whom those rights had been violated. (Id at p. 6.) In this regard, the Court
provided Plaintiff with specific instructions as to how he should amend his Complaint. (Id at
pp. 6-7.) Plaintiff was cautioned that his failure to file an appropriate Amended Complaint
"could result in the dismissal of his cause of action for failure to follow this Court's Order."
(Id. at p. 7 (emphasis in original).)
While Plaintiff did file a proper and timely third Motion to Proceed in Forma Pauperis,
(doc. 23), he also filed a Motion for Extension of Time to Comply, Object, or Move to
Reconsider this Court's July 20, 2017, Order. (Doc. 24.) Plaintiff sought an extension of time
until September 6, 2017, to comply with this Court's directive to file an appropriate Amended
Complaint. According to Plaintiff, he intended to file an Amended Complaint, but he could not
access the law library to research the claims, the proper Defendants, and the facts he needed to
assertin his Amended Complaint. (Id at p. 2.) This Court granted Plaintiffs Motion in part and
allowed Plaintiffup to and including August 28, 2017, to file any desired response to the Court's
July 20, 2017, Order. (Doc. 26.) Plaintiff was forewarned "that the Court will not grant any
additional motions for extension of time to respond he may file." (Id at p. 1.)
Nevertheless, Plaintiff filed a Second Motion for Extension of Time to Comply, Object,
or Move to Reconsider on August 30, 2017. (Doc. 27.) Plaintiffasserted he had surgery on his
wrist on August 8, 2017, and was unable to "do any lengthy writing/typing" until he recovers
from his surgery. Plaintiff estimated his recovery would take four to eight (4-8) weeks' time.
(Id at p. 1.) Plaintiff requested an extension of time until October 6, 2017, to respond to the
Court's July 20, 2017, Order. (Id at pp. 1-2.) Plaintiff also filed a Motion for Extension of
Time to File Objections to the August 14, 2017, Order and a Motion for Reconsideration of this
same Order. (Docs. 28, 29.) The Magistrate Judge denied these Motions, as well as Plaintiffs
Motions to Proceed in Forma Pauperis. (Doc. 30.)
In so doing, the Magistrate Judge noted Plaintiffs reason for requesting a second
extension to respond to the July 20, 2017, Order was because he had wrist surgery and could not
write any pleading that would be lengthy.1 (Id at p. 9.) However, the Court's instructions to
Plaintiff for the filing of an appropriate Amended Complaint only allowed for Plaintiff to add no
more than ten (10) pages to the form Complaint. In addition, the Magistrate Judge took judicial
notice that, in at least one other cause of action Plaintiff initiated in this Court, he filed seven (7)
pleadings or documents on August 11, 2017, or later, and those documents combined for fifteen
(15) pages of substantive content. (Id (citing Daker v. Allen, 6:17-cv-23 (S.D. Ga. Aug. 11-30,
2017), ECF Nos. 33-39).) The Magistrate Judge found Plaintiffs proffered reason for needing
an additional extension of time to respond to this Court's July 20, 2017, Order less than credible,
especially in light of Plaintiff having provided a different reason for his need for an extension of
time to respond to the Court's Order.
In addition to his Objections to the Report and Recommendation, Plaintiff has now filed
the following Motions and pleadings: 1) Motion for Copy of July 20, 2017, Order and Copies of
Civil Rights Complaint form, for Extension ofTime to File Amended Complaint and Objections
to the July 20, 2017, Order, Motion to Reconsider the July 20, 2017, Order, and Motion to
Compel Copies, (doc. 32); 2) Motion for Reconsideration of the August 14, 2017, Order,
(doc. 33); 3) Objection to the August 14, 2017, Order, (doc. 34); 4) Motion to Stay Time to
Object to the Magistrate Judge's Report and Recommendation and the September 18, 2017,
Order, (doc. 35); 5) Motion for Access to Case Authorities, (doc. 36); 6) "Objection to Order on
1 In his first Motion for Extension of Time, Plaintiff declared he could not comply with the Court's July
20, 2017, Order because he could not access the law library to conduct research. (Doc. 24.)
Motion to Vacate", (doc. 38); 7) Motion to Appoint Counsel, (doc. 39); 8) Motion for
Evidentiary Hearing and to Subpoena Plaintiffs Medical Records, (doc. 40); and 9) Motion for
Permission to Exceed the Ten-Page Limit on Amended Complaint, (doc. 41). Plaintiff attached a
typewritten, 119-page proposed Amended Complaint to his most recent filing. (Doc. 41-1.) The
Court addresses Plaintiffs filings in turn, combining his pleadings as necessary due to their
repetitive nature.
I.
Plaintiffs Objections to the Magistrate Judge's Report and Recommendation and
"Objection to Order on Motion to Vacate" (Docs. 37,38)
Plaintiff states that, although the Magistrate Judge forewarned him in the August 14,
2017, Order that the Court would not grant him any further extensions of time, the Magistrate
Judge gave that warning before he was aware of Plaintiffs wrist surgery. Plaintiffcontends he is
left handed and had surgery on his right wrist, but he needs to use his right hand to hold down his
paper while he writes, which causes pain and difficulty. (Doc. 37, pp. 1-2.) Plaintiff also
contends the pain he experiences makes it difficult to write any lengthy pleading. In addition,
Plaintiff maintains the twenty-one (21) pages the Magistrate Judge allotted for the Amended
Complaint (eleven (11) pages for the complaint form and the additional ten (10) pages to attach
to the form) will not provide him with enough space to write his Amended Complaint and are too
much for Plaintiff to write. Plaintiff states his litigation history alone would require more than
ten (10) pages. (Id at pp. 2-4.) Plaintiff notes the Magistrate Judge's citation to another case
Plaintiff filed in this District and the seven (7) motions Plaintiff filed in that case after his wrist
surgery. However, Plaintiff contends the pages ofthose motions did not approach the page limit
the Magistrate Judge provided in this case and had to be written in piecemeal fashion due to the
pain from his surgery. (Id at p. 3.) Plaintiff avers he had a copy ofhis Amended Complaint
almost completed, but it was destroyed when his cell was shaken down on September 10, 2017.
Plaintiff also avers the drafting of a complaint "almost always requires writing a draft before
submitting a final copy." (Id.)
Further, Plaintiff maintains that the Magistrate Judge's page-limit directive is
contradictory because Plaintiff cannot meet the ten (10) additional pages limit without omitting
all factual information, each Defendant's involvement, his efforts at exhaustion, and his litigation
history. Plaintiff states he would have to exceed this additional page limitation to meet the
Magistrate Judge's directives regarding the filing of an Amended Complaint. Additionally,
Plaintiff maintains the Magistrate Judge's directives re-write Federal Rule of Civil Procedure
18(a), which allows a plaintiff to bring as many claims as he can against an opposing party in
one action. (Id. at p. 4.) Plaintiff contends the ten-page limit, which would force him to drop
some claims to fit within this limit, violates the "Simmons principle", which makes it
"'intolerable that one constitutional right should have to be surrendered in order to assert
another.'" (Id (quoting Simmons v. United States, 390 U.S. 377 (1967).) Finally, Plaintiff
alleges he does not have access to the case law the Magistrate Judge cited. (Id at p. 5.)
Plaintiffs latest proffered reasons for failing to comply with this Court's Orders
underscore the reasons the Magistrate Judge found Plaintiffs previously-asserted reasons less
than credible. First, Plaintiffs excuses are ever-changing. Initially, Plaintiff could not comply
with this Court's Orders because he did not have access to the law library. Then, he could not
comply due to his wrist surgery. Now, in addition to his wrist surgery, Plaintiffs almost-
completed Amended Complaint was destroyed when his cell was shaken down on September 10,
2017. In addition, Plaintiffs excuses fail in the face of his course of filings. In this case,
Plaintiff has filed ten (10) pleadings since the Report and Recommendation was filed, and these
pleadings total nearly 150 pages of substantive materials, which includes twenty-four (24)
Plaintiff advances these same arguments inhis "Objection" at Docket Number 38.
handwritten pages and 119 typewritten pages. Even if Plaintiff had to draft these pleadings in
piecemeal fashion due to pain he has been experiencing, he could have done the same with any
desired Amended Complaint. Further, as noted above, Plaintiff recently submitted a proposed
Amended Complaint that consists of 119 typewritten pages. (Doc. 41-1.) This submission alone
undermines Plaintiffs contentions that he is unable to prepare a lengthy pleading.
If Plaintiffs Amended Complaint complied with the Magistrate Judge's page-limit
directive, it would have comprised far fewer pages than his post-Report and Recommendation
filings. Further, by Plaintiffs own admission, he had an Amended Complaint almost completed
on September 10, 2017, when that pleading allegedly was destroyed. The fact that Plaintiffhad
nearly completed his Amended Complaint after his surgery undermines his contention that he
could not prepare an Amended Complaint due to the pain he experiences as a result of that
surgery.
Additionally, Plaintiffs contention that he cannot set forth his related claims within the
Magistrate Judge's twenty-one (21) page limit is also without merit.
This Court's form
complaint requires very little writing, other than marking blanks for "Yes" or "No", disclosing
whether a party has filed previous lawsuits and filed grievances, and providing a brief statement
offacts. A prisoner-plaintiff need not set forth any citations to law. Further, he can state that he
has too many previous lawsuits to name and direct the Court to look at this Court's and other
courts' dockets for that information. The Court was able to provide a factual statement of
Plaintiffs claims in a concise format. Even more telling is that Plaintiffs original Complaint
contains allegations against numerous Defendants who have been dismissed and only consists of
twenty-two (22) pages. Plaintiff was able to set forth all of his unrelated allegations against
many more Defendants in that filing that exceeds the Magistrate Judge's page limitation by only
one page. Thus, Plaintiff should have had no difficulty fitting related claims against far fewer
Defendants in the twenty-one (21) pages the Magistrate Judge allotted for the filing of his
Amended Complaint.
Furthermore, the Magistrate Judge's page limitation does not violate Rule 18(a), as
Plaintiff contends.
Rule 18(a) provides that "[a] party asserting a claim, counterclaim,
crossclaim, or third-party claim may join, as independent or alternative claims, as many claims
as it has against an opposing party." Fed. R. Civ. P. 18(a). "However, 'multiple claims against a
single party are fine, but Claim A against Defendant 1 should not be joined with unrelated Claim
B against Defendant 2. Unrelated claims against different defendants belong in different suits,
not only to prevent the sort of morass [a multiple claim, multiple defendant] suit produce[s], but
also to ensure that prisoners pay the required filing fees—for the Prison Litigation Reform Act
["PLRA"] limits to 3 the number of frivolous suits or appeals that any prisoner may file without
prepayment of the required fees.'" Smith v. Conner. No. 8:12-CV-52-T-30AEP, 2012 WL
1676643, at *1 (M.D. Fla. May 14, 2012) (quoting George v. Smith, 507 F.3d 605, 607 (7th Cir.
2007)). Thus, while Plaintiff can assert as many claims against one Defendant in this cause of
action, he cannot bring unrelated claims against all Defendants in this single cause of action.
Finally, Plaintiffs reliance on Simmons is misplaced. In that case, the United States
Supreme Court discussed whether a criminal defendant who testifies in support of a Fourth
Amendment suppression issue waives his Fifth Amendment right against self-incrimination
during later proceedings. The Supreme Court determined it "intolerable" for one constitutional
right to be surrendered at the sake ofanother and held, "that when a defendant testifies in support
of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not
thereafter be admitted against him at trial on the issue of guilt unless he makes no objection."
Simmons, 390 U.S. at 394. The Magistrate Judge directing Plaintiff to narrow his claims to
related claims in no way limits the exercise of Plaintiffs constitutional rights, especially those of
the same magnitude as the rights involved in Simmons. By limiting his constitutional claims in
this lawsuit to those that are related to one another, Plaintiff would not be faced with the choice
of sacrificing his other constitutional rights like the testifying defendant in Simmons. Rather,
Plaintiff could file his other unrelated constitutional claims in a separate lawsuit.
Accordingly, the Court OVERRULES Plaintiffs Objections, (doc. 37), and ADOPTS
the Magistrate Judge's Report and Recommendation as the opinion of the Court. For these same
reasons, the Court OVERRULES Plaintiffs Objections to the July 20, 2017, Order, (doc. 38).
Nevertheless, the Court still addresses Plaintiffs remaining pleadings.
II.
Plaintiffs "Miscellaneous" Motion (Doc. 32)
In his Miscellaneous Motion, Plaintiffrequests a numberof things. First, Plaintiff wishes
to obtain a copy of the Court's July 20, 2017, Order. In addition, Plaintiff requests two (2)
copies of the Court's civil rights complaint form. Plaintiff contends his copy of the Order and
his Amended Complaint were destroyed on September 10, 2017. Plaintiff also seeks an
additional thirty (30) days to file his Amended Complaint and to file partial Objections to the
July 20,2017, Order. Moreover, Plaintiff requests.that the Court order prison officials to provide
himwithaccess to photocopies at a reasonable rate. (Doc. 32, pp. 1-2.)
The Court GRANTS in part, DENIES in part, and DISMISSES as moot in part
Plaintiffs Miscellaneous Motion. The Court GRANTS the portion of Plaintiff s Motion seeking
two (2) copies ofa blank civil rights complaint form. The Court DIRECTS the Clerk ofCourt
to provide Plaintiff with these forms. The Court also GRANTS the portion of this Motion
requesting a copy ofthe Court's July 20, 2017, Order. The Court DIRECTS the Clerk ofCourt
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to provide Plaintiff with a copy of the Court's July 20, 2017, Order without requiring
prepayment of fees. However, the Court advises Plaintiff that, in the future, he must pre-pay the
Clerk of Court for a copy of any pleading in this case. The Court DISMISSES as moot the
portions of Plaintiffs Motion seeking extensions of time to file additional pleadings, for the
reasons set forth in Section I of this Order. Finally, for the reasons discussed in Section III of
this Order, the Court DENIES the portion of the Miscellaneous Motion requesting the Court to
order Defendants to provide him with photocopies.
III.
Motion for Reconsideration of and Objections to the August 14, 2017, Order
(Docs. 33,34)
Plaintiff seeks reconsideration of the portion of the Court's August 14, 2017, Order
informing Plaintiff that he was not entitled to free copies. Plaintiff maintains he did not request
free copies from prison officials and is willing to have his prison trust account frozen to pay a
reasonable rate for the copies, such as $0.10 a page. (Docs. 33, 34.)
A motion for reconsideration, or a Federal Rule of Civil Procedure 59(e) motion, is "an
extraordinary remedy, to be employed sparingly." Smith ex rel. Smith v. Augusta-Richmond
Ctv., No. CV 110-126, 2012 WL 1355575, at *1 (S.D. Ga. Apr. 18, 2012) (internal citation
omitted). "A movant must set forth facts or law of a strongly convincing nature to induce the
court to reverse its prior decision." Id (internal citation omitted). "The only grounds for
granting a Rule 59 motion are newly-discovered evidence or manifest errors of law or fact."
Jacobs v. Tempur-Pedic Intern., Inc., 626 F.3d 1327, 1344 (11th Cir. 2010) (quoting In re
Kellogg, 197 F.3d 1116, 1119 (11th Cir. 1999) (internal punctuation omitted)). "A Rule 59(e)
motion cannot be used to relitigate old matters, raise argument or present evidence that could
have been raised prior to the entry of judgment." Id (quoting Michael Linet, Inc. v. Village of
Wellington, 408 F.3d 757, 763 (11th Cir. 2005) (alterations omitted)).
11
The Court discerns no reason to grant Plaintiffs Motion. He fails to present any newly-
discovered evidence in support of his request, and he does not demonstrate that the Court's
previously-entered Order represents a manifest error of law or fact. In fact, Plaintiff offers no
reason for the Court to reconsider its previously-entered denial of photocopies. Should Plaintiff
desire photocopies from Defendants and is willing to pay $0.10 for each copy, he should direct
his request to prison officials, as the Magistrate Judge advised. (Doc. 26, p. 3.) Accordingly, the
Court DENIES Plaintiffs Motion for Reconsideration. The Court's Order dated August 14,
2017, shall remain the Order of the Court. For these same reasons, the Court OVERRULES
Plaintiffs Objections to the August 14, 2017, Order.
IV.
Motion to Stay Time to Object to September 18,2017, Report and Recommendation
and Motion for Access to Case Authorities (Docs. 35,36)
In these Motions, Plaintiff asks the Court to issue a stay to permit Plaintiff to file
Objections to the Magistrate Judge's August 14, 2017, Report and Recommendation, pending a
ruling on his Motion for Access to Case Authorities. Plaintiff contends he is supposed to have
access to the law library but does not, because there is not a satellite law library in the prison's
lockdown unit. Plaintiffasserts the Magistrate Judge citedto numerous statutes, rules, and cases,
and he does not have access to these authorities, rendering him unable to formulate Objections or
to distinguish these authorities from his cause ofaction. (Doc. 35, p. 2.) Plaintiff seeks an Order
directing Defendants to provide Plaintiff with the authorities cited or for the Court to do so.
(Doc. 36.)
Plaintiff offers no reason why he cannot formulate Objections to the Report and
Recommendation without having access to the authorities the Magistrate Judge cited, as the
Magistrate Judge recommended Plaintiffs Complaint be dismissed without prejudice based on
Plaintiffs failure to follow this Court's Orders. (Doc. 30.) Plaintiffcould easily respond to this
12
recommendation without having the cited case authorities. To be sure, Plaintiff did just that by
filing Objections to the September 18, 2017, Report and Recommendation as one of the litany of
pleadings he has filed since the Magistrate Judge issued his Report and Recommendation.
(Doc. 37.) Plaintiffs actions throughout the entirety of this litigation—and in particular since
the Magistrate Judge issued his Report and Recommendation—belie any contention that Plaintiff
cannot respond to this Court's rulings or directives. Specifically, in at least three (3) of his post-
Report and Recommendation pleadings, Plaintiff has been able to provide the Court with
citations to the Federal Rules of Civil Procedure and case law. (See Docs. 37, 38, 41.) In short,
Plaintiffs actions either contradict or undermine the reasons advanced in these Motions. Thus,
the Court DENIES Plaintiffs Motion to Stay Time to File Objections and his Motion for Access
to Case Authorities.
V.
Motion to Appoint Counsel (Doc. 39)
Plaintiff requests the Court appoint him counsel for the limited purpose of assisting
Plaintiff with the drafting of his Amended Complaint. 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." 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), and Wahl v. Mclver, 773 F.2d 1169, 1174 (11th Cir. 1985)). The Eleventh Circuit
13
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) (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, 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 Ctv. Sheriffs 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 presenting "the essential merits ofhis
position" to the Court. In fact, the sheer volume ofpleadings Plaintiff has filed with the Court is
clearly indicative of his ability to present this Court with the essential merits of his position.
Plaintiffs failure to comply with this Court's order is not due to his inability to communicate or
his need for counsel to elucidate his position. Rather, he has made a conscious choice to persist
in presenting unrelated claims and to disregard the Court's instructions. For these reasons, the
Court DENIES Plaintiffs Motion.
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VI.
Motion for Evidentiary Hearing and to Subpoena Plaintiffs Medical Records
(Doc. 40)
In this Motion, Plaintiff asserts that, before the Court discredits his reasons for seeking
extensions of time, the Court should hold an evidentiary hearing and allow Plaintiff to call his
medical care provider and to subpoena his medical records.
According to Plaintiff, this
evidentiary hearing will reveal his reasons for requesting extensions of time are credible.
The Court does not find Plaintiffs assertion that he had wrist surgery unworthy of belief.
However, what the Court finds less than credible is Plaintiffs attendant contention that his
surgery prevents him from preparing pleadings in this case, as discussed at length in Section I
above and in the Magistrate Judge's Report and Recommendation. This finding is further
supported by Plaintiffs filing of his proposed Amended Complaint, which consists of 119
typewritten pages and more than 700 paragraphs. (Doc. 41-1.) The record of pleadings in this
case provides more than ample evidence to support the rulings issued in this Order.
Consequently, the Court DENIES Plaintiffs Motion.
VII.
Motion for Permission to Exceed the Ten-Page Limit on Amended Complaint
(Doc. 41)
Plaintiff seeks the Court's permission to exceed the additional ten-page limit the
Magistrate Judge allotted him when advising Plaintiff to submit an Amended Complaint. In
support ofhis Motion, Plaintiff once again states the ten-page limit is impossible for him to meet,
this limit violates Federal Rule of Civil Procedure 18, and it violates the Simmons principle.
(Doc. 41, pp. 1-2.) Plaintiff also states he does not have access to PACER to accurately relay his
litigation history. (Id at p. 3.) Plaintiff attached to this Motion his "First Amended and
Supplemental Complaint". (Doc. 41-1.)
15
The Court DENIES Plaintiffs Motion for the same above-discussed reasons.
In
addition, as noted above, Plaintiffs Amended Complaint is 119 typewritten pages and is
comprised of nearly 700 paragraphs. He names individuals in this Amended Complaint the
District Court for the Middle District of Georgia already dismissed, and this Amended Complaint
still includes unrelated claims.
Moreover, Plaintiff has included claims in his Amended
Complaint which post-date the filing of his original Complaint. Plaintiffs Amended Complaint
in no way comports with the letter or spirit of the Magistrate Judge's instructions or the Federal
Rules of Civil Procedure.
CONCLUSION
The Court OVERRULES Plaintiffs Objections, (doc. 37), and ADOPTS the Magistrate
Judge's September 18, 2017, Report and Recommendation as the opinion of the Court. The
Court DISMISSES without prejudice Plaintiffs Complaint, DISMISSES as moot Plaintiffs
Motions which were pending at the time the Magistrate Judge issued his Report and
Recommendation, (docs. 7, 8, 10, 11-15), and DIRECTS the Clerk of Court to CLOSE this
case and enter the appropriate judgment of dismissal. The Court DENIES Plaintiff leave to
proceed informapauperis on appeal.
Additionally, the Court LIFTS the stay imposed by Order dated September 18, 2017.
The Court further: GRANTS in part, DENIES in part, and DISMISSES as moot in part
Plaintiffs "Miscellaneous" Motion, (doc. 32); DENIES Plaintiffs Motion for Reconsideration,
(doc. 33); OVERRULES Plaintiffs Objections to the August 14, 2017, Order, (doc. 34);
DENIES Plaintiffs Motion to Stay and Motion for Access to Case Authorities, (docs. 35, 36);
OVERRULES Plaintiffs Objections to the July 20, 2017, Order, (doc. 38); DENIES Plaintiffs
Motion to Appoint Counsel, (doc. 39); DENIES Plaintiffs Motion for Evidentiary Hearing and
16
to Subpoena Plaintiffs Medical Records, (doc. 40); and DENIES Plaintiffs Motion to Exceed
the Ten-Page Limit, (doc. 41).
SO ORDERED, this
W
day of December, 2017.
J. RANDAE HALL, CHIEF JUDGE
UNITEJ^STATES DISTRICT COURT
^OTJTHERN DISTRICT OF GEORGIA
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