Marshall v. G.D.C.I. Food Service, et. al.

Filing 13

ORDER granting 10 Motion for Reconsideration and the 8 Dismissal Order is vacated. It is further ordered the 5 Report and Recommendation denying Plaintiff's IFP motion is vacated. It is further ordered that Plaintiff is granted leave to amend his complaint as to both of his substantive claims by the close of business on Thursday, May 17, 2018. Signed by Chief Judge J. Randal Hall on 04/26/2018. (jlh) Modified on 4/26/2018 (jlh).

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

JAMMIE L. MARSHALL,

*
*

Plaintiff,

*
*

V.

*

CV 617-117

*

G.D.C.I. FOOD SERVICE,

*
*

Defendant.

*

ORDER

Plaintiff is presently confined at Johnson State Prison in
Wrightsville, Georgia.

Plaintiff, proceeding pro se, initiated

the present action with the filing of a complaint pursuant to 42
U.S.C. § 1983 regarding events allegedly occurring while he was

an inmate at Rogers State Prison (''RSP") in Reidsville, Georgia.
(Doc. 1; see also Doc. 7, SI 5.)

alleged

that: (i)

operating
while

he

his

left hand

improperly-maintained
was

on

work

detail

In his complaint. Plaintiff

was seriously injured

equipment

at

RSP

on

at

or

a

canning

about

while
plant

December

22,

2015; and (ii) a doctor took an unreasonable amount of time to
review his records in connection with his aforementioned injury.
(See Doc. 1, at 3-5, 8.)

Plaintiff subsequently filed a motion

to proceed in forma pauperis.
On

December

5,

2017,

(Doc. 3.)

the

United

States

Magistrate

Judge

conducted an initial review of Plaintiff's pleadings and other

filings and entered a report and recommendation

C'R&R") wherein

he

recommended

that

Plaintiff's

complaint

be

dismissed

failure to state a claim and that this case be closed.

5.)

for

(Doc.

Indeed, with regards to Plaintiff's allegations concerning

improperly-maintained
Magistrate

Judge

regarding

the

equipment

concluded

at

that:

the

(i)

canning

plant,

Plaintiff's

improperly-maintained

the

allegations

equipment

was

more

appropriately considered a ''negligence-based tort" rather than a
claim under Section 1983; (ii) Plaintiff had failed to indicate
whether

Defendant

private

corporation

Department

of

G.D.C.I.

(as

Food

Service

opposed

Corrections"

to

insulated

"an

("G.D.C.I")

arm

from

of

suit

was

a

the

Georgia

under

Section

1983 by the Eleventh Amendment); and (iii) even if G.D.C.I, was

a private corporation subject to suit. Plaintiff's allegations
against G.D.C.I, appeared to be based solely upon theories of
respondeat

superior

or

vicarious

cognizable under Section 1983).

liability

(which

(Id. at 4-6.)

are

non-

Further, with

regards to Plaintiff's allegations concerning a doctor's delayed
review of
that:

his medical records,

(i)

allegations

Plaintiff

in

his

the Magistrate Judge

failed

to

complaint

make

to

concluded

sufficient

demonstrate

factual

deliberate

indifference to his medical needs; and (ii) Plaintiff had failed
to name the relevant doctor as a defendant in this case and/or

explain

how

(in)actions.

G.D.C.I,

could

(Id. at 6-9.)

be

held

liable

for

that

doctor's

For these reasons, the Magistrate

Judge

also

pauperis.
On

denied

Plaintiff's

motion

to

proceed

in

forma

(Id. at 10.)
December

21,

2017,

objections to the R&R.

the

Court

(Doc. 7.)

received

Plaintiff's

Therein, Plaintiff asserted

his belief that he had set forth sufficient factual allegations
to

survive

admitted
facts

dismissal.

that

when

(Id.

SI

3.)

Further,

he ''possibly inadvertently

preparing

his

final

draft

while

omitted

of

the

Plaintiff

some

of

the

complaint,"

he

asserted it was error for the Magistrate Judge to not grant him
leave to amend his complaint "to add the omitted facts."
4;

see

also

factual

SISI

statements

Plaintiff

plant

id.

5-16

(attempting

support

of

advised

had

in

"prison

detail

maintenance

forth

claims,

including

officers"

and

that

"canning

issues with the machinery that caused his injuries).)

Plaintiff

to

numerous

additional

regarding

simply

on

set

occasions"

further stated

personnel

his

to

(Id. SI

that he "was under

name

the

part

of

the impression

the Department

of

that he

Corrections

was

to

which he was assigned to as a defendant in his complaint" and,
similarly,

that

"refer[ring]

to

the

doctor's

actions

and

inactions" was sufficient to have him included as a defendant in

this action.^

(Id. SISI 17-18.)

After conducting an independent and de nova review of the
entire record, this Court adopted the Magistrate Judge's R&R as

^ Notably, while Plaintiff only specifically named G.D.C.I, in the caption of
his complaint, he did style the case as "Jammie L. Marshall v. G.D.C.I., et
al." (See Doc. 1, at 1 (emphasis added).)
3

its own opinion on January 23, 2018.
Order").)

Accordingly,

the

(Doc. 8 (the ''Dismissal

Court

dismissed

Plaintiff's

complaint for failure to state a claim and closed this case.
(Id.)

On February 5, 2018, the Court received Plaintiff's instant
motion seeking reconsideration of
10.)

the Dismissal Order.

(Doc.

Therein, Plaintiff requests that he be allowed to submit

an amended complaint that "correct[s] any and all failed claims
. . . [and] include[s] all names that the Magistrate Judge has
deemed

that

complaint."

his

Plaintiff

(Id.)

proposed

has

failed

to

mentioned

[sic]

in

[his]

Plaintiff, however, did not attach a copy of

amended

complaint

to

his

motion

seeking

reconsideration.

Here, the Court concludes that the aforementioned defects

identified

in

amendment.

Plaintiff's

claims

Accordingly,

the

may

Court

have
was

been

curable

obligated

to

via
give

Plaintiff at least one opportunity to cure before dismissing his
action with prejudice for failure to state a claim.

See Carter

V. HSBC Mortgage Servs., Inc., 622 F. App'x 783, 786 (11th Cir.
2015) ("A pro se plaintiff . . . must be given at least one
chance

to

dismisses

amend
the

the

action

complaint
with

before

prejudice,

at

the

district

least

where

carefully drafted complaint might state a claim.
even
after

where
the

the

plaintiff

district

court

does

not

enters
4

seek
final

leave

to

court
a

more

This is true
amend

judgment."

until

(internal

quotations and emphasis omitted) (citing Bank v, Pitt»
1108,

1112

Daewoo
2002)

(11th

Heavy
(en

Cir.

Indus.

1991),

Am.

banc))).

overruled

Corp.,

314

Therefore,

in

F.3d

the

part

541,

Court

by

542

will

928 F.2d
Wagner

(11th

v.

Cir.

vacate

the

Dismissal Order and grant Plaintiff the opportunity to amend his
complaint.
Accordingly, upon the foregoing and due consideration, IT
IS

HEREBY

(doc.

10)

ORDERED

that

GRANTED

IT

VACATED.

is

IS

Plaintiff's

and

FURTHER

the

motion

for

Dismissal

ORDERED

that

reconsideration

Order

the

(doc.

portion

8)

of

is

the

Magistrate Judge's R&R (doc. 5) in which the Magistrate Judge
denied Plaintiff's motion to proceed in forma pauperis in this
matter

GRANTED

is

VACATED.

LEAVE

TO

substantive claims.

IT

IS

AMEND

FURTHER

his

ORDERED

complaint

that

as

to

Plaintiff

both

of

is

his

If Plaintiff wishes to proceed forward with

this case, he SHALL file his forthcoming amended complaint by
the

close

of

business on

Thursday, May 17,

2018;

Plaintiff's

failure to file his forthcoming amended complaint within this
time-period

as

directed

may

result

in

the

dismissal

action with prejudice without further notice.^

of

this

Upon the timely

^ The amended complaint must be typed or printed legibly so that the Court may
discern Plaintiff's claims, and it will supersede and replace in its entirety
the previous pleadings filed by Plaintiff; no portion of any prior pleading
shall be incorporated into his amended complaint by reference.
See Hoefling
V. City of Miami, 811 F.3d 1271, 1277 (11th Cir, 2016); Lowery v. Alabama
Power Co., 483 F.3d 1184, 1219 (11th Cir. 2007) ("an amended complaint
supersedes the initial complaint and becomes the operative pleading in the

case").

While Plaintiff may attach exhibits to his amended complaint, he

shall not incorporate them by reference as a means of providing the factual
basis for his pleading. For example. Plaintiff should not simply state, "see
5

filing

of

Plaintiff's

forthcoming

amended

complaint,

the

Magistrate Judge is DIRECTED to perform a frivolity review of
the amended complaint, consider the merits of Plaintiff's motion
to proceed in foxma pauperis in light thereof, and enter further
orders

herein

as

appropriate

to

move

at

Georgia,

this

case

towards

resolution.

ORDER

ENTERED

Augusta,

this

day

of

April, 2018.

)AL HALL, CHIEF JUDGE
ID STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

attached documents," as the Court will not independently examine exhibits
that Plaintiff does not specifically reference (by the exhibit's page niamber)
in his amended complaint.
Moreover, Plaintiff shall submit only one amended
complaint in accordance with the terms of this Order. Therefore, Plaintiff
shall state in the single amended complaint filed in accordance with the
terms

of

this

Order

all

claims

that

he

wishes

the

Court

to

consider

as

a

basis for awarding the relief sought.
Finally, Plaintiff shall identify by
name - in both the case caption and the relevant paragraphs of the body of
his complaint - each and every defendant against whom he is asserting claims.
6