United States District Court, S.D. Georgia, Dublin Division
careful, de novo review of the file, the Court
concurs with the Magistrate Judge's Report and
Recommendation ("R&R"), to which objections
have been filed. (Doc. no. 56.) The Magistrate Judge
recommended dismissal of Defendants Telfair County, Steve
Upton, Jacob Beasley, and Glen Johnson because Plaintiff
failed to state a claim against these Defendants, and allowed
Plaintiffs deliberate indifference claims against Defendants
Fred Gammage, William Danforth, Robert Toole, Terrence
Kilpatrick, Sgt. Mixon, Rodney McCloud, and Phillip Hall to
proceed. (Doc. no. 44.) The Magistrate Judge also recommended
dismissal of Plaintiffs retaliation claim (doc. no. 37) and
all claims for monetary damages against remaining Defendants
in their official capacities. Id.
majority of Plaintiffs objections merely reiterate the
arguments raised in his amended complaint. (See doc.
nos. 38, 56, 58, 59.) Plaintiff objects to the dismissal of
Defendants Beasley and Johnson, providing unsubstantiated
assertions that these Defendants were deliberately
indifferent. (See doc. no. 56.) The Magistrate Judge
correctly determined Plaintiffs conclusory allegations of
deliberate indifference against Defendants Telfair County,
Steve Upton, Jacob Beasley, and Glen Johnson were
insufficient to state a claim against these Defendants, and
Plaintiffs objections do not alter the conclusions reached by
the Magistrate Judge. Accordingly, the Court OVERRULES
objections, Plaintiff presents several new arguments and
factual allegations in support of his retaliation claim that
were not present in his prior pleadings. (See doc. nos. 56,
58, 59.) While district courts have the discretion to
consider novel evidence, factual claims, and legal argument
raised for the first time in an objection to an R&R, they
are under no obligation to do so. Williams v.
McNeil. 557 F.3d 1287, 1292 (11th Cir. 2009) (concluding
district judge has broad discretion in considering argument
not presented to magistrate judge); see also United
States v. Howell 231 F.3d 615, 621 (9th Cir. 2000)
(holding district courts are not required to consider
supplemental factual allegations presented for first time in
objections to magistrate judge's report and
recommendation). Plaintiffs failure to raise the newly
presented facts prior to his objections is an independent
ground on which to overrule his objections. Sinclair v.
Williams, No. CV614-072, 2015 WL 3480986, at *2 (S.D.
Ga. June 1, 2015) ("Plaintiffs failure to raise any
facts or issues prior to his Objections is an independent
ground upon which to overrule his objection.").
the Court were to consider Plaintiffs new factual allegations
in support of his retaliation claim, Plaintiff is not
entitled to relief. Under the First Amendment, prison
officials may not retaliate against inmates for filing
lawsuits or administrative grievances. Farrow v.
West, 320 F.3d 1235, 1248 (11th Cir. 2003). A prisoner
may state a cognizable § 1983 claim by alleging the
actions of prison officials "that might not otherwise be
offensive to the Constitution" may be brought
"within the scope of the Constitution by alleging that
the actions were taken in retaliation for filing lawsuits and
administrative grievances." Wright v. Newsome,
795 F.2d 964, 968 (11th Cir. 1986). In Bennett v.
Hendrix. 423 F.3d 1247 (11th Cir. 2005), the Eleventh
Circuit clarified the standard for asserting a cognizable
retaliation claim: "A plaintiff suffers adverse action
if the defendant's allegedly retaliatory conduct would
likely deter a person of ordinary firmness from exercise of
First Amendment rights." Id. at 1254. There
must be a causal connection between the protected speech and
the retaliatory action. Id. at 1250;
O'Brvant v. Finch. 637 F.3d 1207, 1216-20 (11th
Plaintiff presents new factual allegations that prison
officials retaliated against him for filing grievances and
the present litigation by providing a notation in his prison
file stating Plaintiff is one of the "top 200 most
dangerous inmate[s] in Georgia's state prison
[system]." (Doc. no. 59, p. 2.) Plaintiff asserts this
notation has deprived him of a transfer to a safer prison.
has no constitutional right to be transferred from Telfair
State Prison. See Tate v. Brannen, No.
5:ll-CV-249-WLS-MSH, 2012 WL 6968457, at *3 (M.D. Ga. Jan.
23, 2012), report and recommendation adopted. No.
5:ll-CV-249 WLS, 2013 WL 395976 (M.D. Ga. Jan. 31, 2013)
("Plaintiff. . . had no constitutional right to be
transferred from BSP."); see also Adams v.
James. 784 F.2d 1077, 1079 (11th Cir. 1986)
("prison inmates do not have a constitutionally
protected right to remain at a particular penal
institution"). Second, even if this were a sufficiently
adverse action, Plaintiff offers only a conclusory allegation
the notation was causally connected to his prison grievances
or the present lawsuit. Without more, this Court cannot infer
a causal connection. In sum, Plaintiff has failed to state a
the Court OVERRULES Petitioner's objections, ADOPTS the
Report and Recommendation of the Magistrate Judge as its
opinion, and DISMISSES Defendants Telfair County, Glen
Johnson, Steve Upton, and Jacob Beasley. The Court also
DISMISSES Plaintiffs retaliation claim (doc. no. 37), and