United States District Court, M.D. Georgia, Columbus Division
ORDER AND REPORT AND RECOMMENDATION
STEPHEN HYLES, Magistrate Judge.
Presently pending before the Court are several motions filed by Plaintiff (ECF Nos. 42-45, 48, 54, 57, 62, 63, 78) and Defendants' motion for summary judgment (ECF No. 65). For the reasons explained below, Plaintiff's motions for appointment of counsel (ECF Nos. 42, 44), discovery motions (ECF Nos. 62, 63), motion to change venue (ECF No. 45), notice of "due process violation" (ECF No. 48), motion for documents and records at government expense (ECF No. 54), "request for status on pending motions" (ECF No. 57), and letter request that the Court stop Plaintiff's being charged for his appellate filing fee (ECF No. 78) are denied. It is recommended that Plaintiff's motion for injunctive relief (ECF No. 43) be denied and Defendants' motion for summary judgment be granted.
In his Amended Complaint, Plaintiff sues Harris County Prison (HCP) Warden Alex Haden, Deputy Warden Edward Walker, and Lieutenant Melvin Foster. Plaintiff alleges that on April 4, 2012, a petition for writ of habeas corpus he filed in state court was served on Defendant Warden Haden. The following day, Plaintiff was issued a disciplinary report, charging him with failure to follow instructions and possession of contraband. Plaintiff alleges that the disciplinary report was false and that he was placed in the "hole" for five days without due process and in retaliation for his filing the habeas action, grievances, and a section 1983 action.
Each of the Defendants thereafter allegedly confiscated Plaintiff's personal property, including "legal documents and evidence that was critical to his habeas case." According to Plaintiff, his habeas petition was denied on May 23, 2012, because he "could not prepare a defense or present his case." Plaintiff also alleges that Warden Haden retaliated against Plaintiff by ordering his transfer to Hays State Prison. Plaintiff further alleges that Haden intentionally submitted incorrect paperwork to the Georgia Board of Pardons and Paroles, which resulted in Plaintiff being required to serve additional time in prison.
After a preliminary review of Plaintiff's Amended Complaint, Plaintiff's claims for retaliation, denial of access to the courts, and for intentionally interfering with Plaintiff's paperwork submitted to the Georgia Board of Pardons and Paroles were allowed to proceed. Plaintiff thereafter filed multiple motions for appointment of counsel, for injunctive relief, and for discovery. Defendants moved for summary judgment. These motions are now ripe before this Court.
I. Plaintiff's Motions
A. Motions for Appointment of Counsel
Plaintiff previously filed motions for appointment counsel (ECF Nos. 6, 25, 29), all of which have been denied by this Court (Order, May 8, 2012, ECF No. 7; Order, August 19, 2013, ECF No. 31). He has now filed two additional motions for appointment of counsel (ECF Nos. 42, 44). Plaintiff's motions, having been read and fully considered, are hereby denied for the same reasons set forth in this Court's prior Orders. See also Sims v. Nguyen , 403 F.App'x 410, 414 (11th Cir. 2010) (affirming district court's denial of counsel where prisoner's claims were "relatively straightforward, involving incidents of which [prisoner] had first-hand knowledge"); Poole v. Lambert , 819 F.2d 1025, 1028 (11th Cir.1987) (prisoner has "no absolute constitutional right to the appointment of counsel" in his section 1983 lawsuit).
B. Motion for Injunctive Relief
Plaintiff also seeks relief in the form of a Temporary Restraining Order (ECF No. 43) directing the Georgia Department of Corrections and "Prison Officials" to stop retaliating against Plaintiff for "exercising his constitutional rights." (Mot. for TRO ¶ 2, ECF No. 43.) Such relief is only appropriate where the movant demonstrates that (a) there is a substantial likelihood of success on the merits; (b) the preliminary injunction is necessary to prevent irreparable injury; (c) the threatened injury outweighs the harm that a preliminary injunction would cause to the non-movant; and (d) the preliminary injunction would not be adverse to the public interest. Parker v. State Bd. of Pardons & Paroles , 275 F.3d 1032, 1034-35 (11th Cir. 2001). An irreparable injury "must be neither remote nor speculative, but actual and imminent." Siegel v. LePore , 234 F.3d 1163, 1176 (11th Cir. 2000) (citations omitted).
Plaintiff contends that he has previously been disciplined in retaliation for filing lawsuits and that in order to file additional claims against the Georgia Department of Corrections and certain prison officials, he needs a TRO. Initially, the Court notes that Plaintiff is requesting that the Court issue an order directing prison officials and the Georgia Department of Corrections to stop retaliating against him-in other words, to obey the law. Such injunctive relief is impermissible. See, e.g. , Elend v. Basham , 471 F.3d 1199, 1209 (11th Cir. 2006) ("It is well-established in this circuit that an injunction demanding that a party do nothing more specific than "obey the law" is impermissible."). Furthermore, as discussed below, the Court finds that Defendants are entitled to summary judgment on Plaintiff's claims and therefore, Plaintiff has failed to show a "substantial likelihood of success on the merits." Accordingly, it is recommended that Plaintiff's motion for a temporary restraining order (ECF No. 43) be denied.
C. Discovery Motions
Plaintiff filed two documents with the Court, each of which has been docketed as a motion to compel. (ECF Nos. 62, 63.) The first is actually a letter (ECF No. 62) to the district judge discussing Plaintiff's complaints about the discovery process and requesting appointment of counsel. To the extent that this letter could be construed as a motion for appointment of counsel, such motion is denied as discussed above. The remaining content of this letter shall be construed as support for Plaintiff's actual motion to compel (ECF No. 63).
Plaintiff seeks to have the Court compel discovery pursuant to Federal Rules of Civil Procedure Rule 37. Initially, the Court notes that Plaintiff failed to include in either motion a certification that he has in good faith conferred with Defendant in an attempt to obtain the information he seeks without court intervention. Fed.R.Civ.P. 37(a)(1); M.D. Ga. Loc. R. 37. Since Plaintiff is proceeding pro se in this action, the Court will not consider this fatal to his motions.
Defendants refused to respond to Plaintiff's discovery requests which were sent on January 6, 2014 because such responses would be due outside the discovery period which ended on January 23, 2014. Consequently, Plaintiff asks this Court to compel Defendants to answer his discovery requests. In support Plaintiff claims that (1) he attempted to provide Defendants' attorney with discovery at his deposition on December 18, 2013, but Defendants' counsel refused to accept the requests; (2) Plaintiff did not have access to a photocopier; (3) Defendants' counsel has acted to "obstruct" Plaintiff's case and intimidate Plaintiff by failing to respond and by telling Plaintiff that counsel would seek attorneys' fees for the time spent responding to a motion to compel; and (4) Plaintiff's requests are proper, relevant, and likely to lead to admissible evidence.
Plaintiff's motion to compel is denied. Plaintiff's most persuasive argument for compelling discovery is that he attempted to serve Defendants with his discovery requests on December 18, 2013. Plaintiff cites generally to his 145 page deposition transcript in support of this contention. (Mot. to Compel 1-2, ECF No. 63.) The Court, however, finds no support for this argument in Plaintiff's deposition. ( See generally Pl.'s Dep., Dec. 18, 2013, ECF No. 69.) Plaintiff did not cite to a specific portion of his deposition that supports his contention that he attempted to give Defendants discovery requests and the Court was unable to locate such. Plaintiff's ...