Lanier v. Sizemore, Inc. et al
ORDER ADOPTING 21 REPORT AND RECOMMENDATIONS of the U.S. Magistrate Judge as the opinion of the Court and DENYING AS MOOT 24 Motion to Substitute Attorney. Defendant Sheldon L. Langford is DISMISSED from this case. Signed by District Judge R. Stan Baker on 09/14/2020. (JH)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
CIVIL ACTION NO.: 6:18-cv-003
SIZEMORE, INC. and SHELDON L.
After a careful de novo review of the entire record, the Court concurs with the Magistrate
Judge's July 8, 2020, Order and Report and Recommendation. (Doc. 21). Defendants have filed
objections; however, they relate only to the Magistrate Judge’s Order authorizing service of the
complaint on Sizemore, Inc.
Therefore, as the objections do not concern the
recommended disposition of claims, the Court construes the objections to travel under
§ 636(b)(1)(A) and Federal Rule of Civil Procedure 72(a). Accordingly, the Court ADOPTS the
Report and Recommendation as its opinion and DISMISSES from the case Sheldon L. Langford.
(Doc. 21). For the following reasons, defendants’ Rule 72(a) objections are DISMISSED AS
As an initial matter, defendants are in no position to object to the Magistrate Judge’s Order.
The Court previously explained to defendants after they prematurely filed a motion to dismiss, that
as plaintiff has been granted leave to proceed in forma pauperis in this case, service of the
complaint would not occur until after the Court had completed its screening pursuant to 28 U.S.C.
§ 1915(e)(2). (See doc. 15 at 7–9). According to the docket, no such service has been effected.
As such, they are not yet active parties to this case.1
Furthermore, any assertion of standing, in a purely colloquial sense, by defendants to
challenge the Court’s authorization of service is based on a misapprehension of the Court’s
purpose in screening the complaints of IFP litigants. At screening, the Court does not stand in the
shoes of a defendant and challenge the viability of a plaintiff’s claims. Cf. Portnoy v. United
States, 811 F. App’x 525, 533 (11th Cir. 2020) (“[A] court may not serve as de facto counsel for
a party . . . .” (internal quotation omitted)). The purpose of the screening procedure is to ensure
that the resources of the Court are not wasted on frivolous litigation. See Abiodun v. Holder, 86
F. Supp. 3d 11, 13 (D.D.C. 2015) (the focus of screening under § 1915(e) is, principally, to
discourage “baseless lawsuits that paying litigants generally do not initiate because of the costs of
bringing suit and because of the threat of sanctions for bringing vexatious suits under Federal Rule
of Civil Procedure 11.” (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)) (citations omitted).
Rather, it is the Court’s responsibility to permit any legitimate claim to be resolved on its merits.
None of the grounds raised in the objection suggests that the plaintiff’s claims are frivolous or
vexatious. Just as defendants could not object to service based on the merits of the pleadings had
plaintiff remitted his filing fee, they cannot object to the Court permitting service at its own
expense. Therefore, defendants lack standing to object to the Magistrate Judge’s Order.
Even if the defendants were more clearly situated to object, the objections do not warrant
reversing the Magistrate Judge’s order. Defendants mistakenly frame their objections as arising
under 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil Procedure 72(b), which would subject
Defendants have filed a motion to substitute counsel. (Doc. 24). As defendants have not yet
been served, no counsel has properly appeared. As such, the motion is DENIED AS MOOT.
the Magistrate Judge’s analysis to de novo review. (Doc. 25). As the objections relate to a nondispositive issue, however, the correct standard is 28 U.S.C. § 636(b)(1)(A) and Federal Rule of
Civil Procedure 72(a), which requires that the order be modified or set aside only when it is “clearly
erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a). The objections
identify no such error.
Defendants have not established that the Magistrate Judge committed clear error or that the
order was contrary to law. The argument most closely approaching such an assertion is that the
Court erred in construing plaintiff’s objections to a Report and Recommendation to allow the
introduction of new information, effectively amending the earlier pleadings, despite having
previously advised plaintiff that no further amendments would be permitted. (Doc. 25 at 2–3).
However, whether to permit an amendment to a complaint is within the discretion of the District
Court. Foman v. Davis, 371 U.S. 178, 182 (1962) (“the grant or denial of an opportunity to amend
is within the discretion of the District Court.”). As suggested by rule 15(a)(2), opportunities to
amend should be granted freely. Fed. R. Civ. Pro. 15(a)(2). This is particularly the case with
pro se plaintiffs, who are afforded a charitable reading of their complete pleadings for purposes of
screening. See Faulk v. City of Orlando, 731 F.2d 787, 790 (11th Cir. 1984) (“an expansive view
of the complaint's scope is consistent with the established rule of liberal construction for pro se
pleadings; it enables us to answer the central question whether appellant can possibly prove a set
of facts in support of his claim which would entitle him to relief.”). This predisposition to permit
amendments is not unlimited, as permitting amendments would not be appropriate “(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.” In re Engle Cases, 767 F.3d 1082,
1108–09 (11th Cir. 2014) (quoting Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001)).
In construing the objection to amend the pleadings, the Magistrate Judge did not prejudice
the defendants as any delay occurred prior to service. As no defendant has been served, none can
assert any legitimate reliance right based on the Magistrate Judge’s prior warning that additional
amendments would not be permitted. Additionally, in permitting service, the Magistrate Judge
has not foreclosed defendants’ right to file future dispositive motions.2 Even assuming the Court
reached the merits of the objections, they are overruled.
Accordingly, Court ADOPTS the Report and Recommendation as the opinion of the Court.
Defendant Sheldon L. Langford is DISMISSED from this case.
defendants’ objections are overruled, (doc. 25), and motion to substitute attorney is DENIED AS
MOOT, (doc. 24).
SO ORDERED, this 14th day of September, 2020.
R. STAN BAKER
UNITED STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF GEORGIA
Though the Court applies the same standard at screening as is applied for 12(b)(6) motions, the
charitable readings and deference afforded to plaintiff do not apply in the same way post-service.
Because, as discussed above, the Court at screening does not act on behalf of any defendant, it is
entirely possible that an interested defendant will identify additional arguments against a plaintiff’s
claims. The additional creativity and diligence exercised by an interested party is, after all, the
raison d’être of the adversarial system. As such, an authorization of service is not indicative of a
party’s chances of success on a later dispositive motion.
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