Seagroves v. Corrections Corporation of America (CCA) et al

Filing 23

REPORT AND RECOMMENDATION: Magistrate Judge Knowles Recommends that Plaintiff's 20 MOTION to Amend 1 Complaint 20 should be Denied, because it is futile. Signed by Magistrate Judge E. Clifton Knowles on 7/12/11. (dt)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
COLUMBIA DIVISION

ALVIN SEAGROVES,
Plaintiff,

vs.

CORRECTIONS CORPORATION OF
AMERICA (CCA), et al.,
Defendants.

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CASE NO. 1:11-00035
JUDGE TRAUGER/KNOWLES

REPORT AND RECOMMENDATION
On May 27, 2011, the undersigned submitted a Report and Recommendation
recommending that this action be dismissed unless Plaintiff paid the full civil filing fee. Docket
No. 6. The undersigned noted that Plaintiff had brought three prior actions in this Court, while
he was incarcerated or detained in a facility, that were dismissed on grounds that they were
frivolous or failed to state a claim upon which relief could be granted. Id., p. 2. That being the
case, Plaintiff was not entitled to file this action in forma pauperis under 28 U.S.C. § 1915(g)
unless he was “under imminent danger of serious physical injury,” which he had not alleged.
On June 14, 2011, Plaintiff submitted an unsigned “Motion to Amend Complaint to Aver
Imminent Danger of Serious Physical Injury.” Docket No. 20.
On June 17, 2011, Plaintiff filed objections to the undersigned’s Report and
Recommendation. The basis for Plaintiff’s objections was the fact that he had filed a Motion to
Amend his Complaint. Plaintiff’s objections stated in part as follows:

6.) On June 10, 2011, Plaintiff filed his Motion to Amend
Complaint, (D.E. #7);
...
9.) Plaintiff submits that had he averred, in his original complaint,
that he “is under imminent danger of serious physical injury,” the
Court would have been authorized to consider and accept his
allegations under the provisions of 28 U.S.C. § 1915(g);
10.) Plaintiff submits that his Motion to Amend Complaint should
be considered as if filed contemporaneously with the original
complaint;
11.) Plaintiff submits that the Court should grant Plaintiff’s
Motion to Amend Complaint and Plaintiff’s Motion to Proceed In
Forma Pauperis, based upon the Motion to Amend the Complaint
and allow Plaintiff to proceed with discovery at this time;
12.) Plaintiff submits that his present physical and mental
conditions are the direct result of the “serious injury” Plaintiff
received at the hands of the Defendant [sic]. Plaintiff further
affirmatively states that unless he is allowed to proceed with the
instant lawsuit he will again be placed under “imminent danger of
serius [sic] physical harm and/or death” at the hands of the
Defendant )CCA). . . .
On June 24, 2011, the undersigned entered an Order noting that Plaintiff’s “Motion to
Amend Complaint” (Docket No. 11) did contain a signature nor did it contain a Certificate of
Service. Docket No. 14. That Order stated in relevant part, “Pursuant to Fed. R. Civ. P. 11(a),
the Court will strike the Motion unless this omission is promptly corrected.” Id.
On July 1, 2011, Judge Trauger entered an Order addressing the Report and
Recommendation and Plaintiff’s objections. Docket No. 16. Judge Trauger overruled Plaintiff’s
objections, and adopted and approved the Report and Recommendation. Id. That Order stated in
relevant part as follows:
In order to make a sufficient showing of imminent danger, the
plaintiff must demonstrate “any immediate or specific danger of
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future serious injury.” . . . The plaintiff’s claim of imminent
danger is predicated upon the defendants’ failure to provide him
with adequate medical care. The defendants allegedly denied him
that care while he was an inmate at the South Central Correctional
Center. The plaintiff, however, has not been an inmate at that
facility since May 23, 2010. . . . He does not claim that he is being
denied medical care at his present place of confinement.
Therefore, the plaintiff has failed to demonstrate an imminent
danger of serious physical injury.
Docket No. 16, p. 2 (citations omitted).
Judge Trauger’s Order also included the following footnote:
After entry of the Report and Recommendation but before filing
his objections, the plaintiff submitted a Motion to Amend (Docket
Entry No. 11) the complaint with an allegation of imminent
danger. Because the Motion was unsigned, the Magistrate Judge
ordered its return to the plaintiff for signature. See Docket Entry
No. 14. The Motion has not yet been returned and was not
considered with the plaintiff’s objections. Rule 11(a), Fed. R. Civ.
P. Nevertheless, had the Motion been signed and returned, it adds
nothing that would change the conclusion reached by the Court.
Docket No. 16, p. 3 (emphasis added).
On July 6, 2011, Plaintiff resubmitted his “Motion to Amend” with a signature. Docket
No. 20. The text of the signed Motion is identical to the text of the unsigned Motion.
Plaintiff’s Motion to Amend (Docket No. 11) should be DENIED, because it is futile. See
Foman v. Davis, 371 U.S. 178 (1962). Moreover, Plaintiff has offered no factual support for the
legal conclusion that “unless he is allowed to proceed with the instant lawsuit he will again be
placed under ‘imminent danger of serius [sic] physical harm and/or death at the hands of the
defendant )CCA). . . . .” See Ashcroft v. Iqbal, 129 S.Ct. 1937, 173 L. Ed. 2d 868 (2009).
Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14)
days after service of this Report and Recommendation in which to file any written objections to

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this Recommendation with the District Court. Any party opposing said objections shall have
fourteen (14) days after service of any objections filed to this Report in which to file any
response to said objections. Failure to file specific objections within fourteen (14) days of
service of this Report and Recommendation can constitute a waiver of further appeal of this
Recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L. Ed. 2d 435 (1985),
reh’g denied, 474 U.S. 1111 (1986); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72.

E. Clifton Knowles
United States Magistrate Judge

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