United States District Court, M.D. Georgia, Macon Division
JAMES A. COSTLOW, Plaintiff,
COREY LOCKETT, Defendant.
Under 42 U.S.C. §1983 Before the U.S. Magistrate Judge
ORDER AND RECOMMENDATION 
Charles H. Weigle United States Magistrate Judge
the Court are cross motions for summary judgment filed by
Plaintiff James A. Costlow (Doc. 74), and Defendant Corey
Lockett (Doc. 62). Based on the analysis below, it is
RECOMMENDED that Plaintiff's Motion be
DENIED, that the Defendant's Motion be
GRANTED, and that summary judgment be
entered in the Defendant's favor.
James A. Costlow, a prisoner, alleges that Defendant Corey
Lockett, a corrections officer, failed to protect Plaintiff
from harm at the hands of another prisoner named Donald
McCrimmon. By Plaintiff's account, Defendant Lockett
allowed McCrimmon to serve as a prisoner-orderly, responsible
for delivering meals to prisoners in the H-1 dormitory of
Macon State Prison, where Plaintiff was then housed.
McCrimmon served meals by sliding food trays through
“tray flaps, ” or small openings in the doors to
individual cells. When McCrimmon served Plaintiff, an
altercation ensued. During this altercation, Plaintiff wedged
his elbow through the tray flap toward McCrimmon, and
McCrimmon responded by repeatedly slamming the tray flap down
onto Plaintiff's elbow, resulting in contusions that
required stitches. Plaintiff contends that Defendant Lockett
was deliberately indifferent to the risk posed by McCrimmon,
and that his deliberate indifference amounted to cruel and
unusual punishment in violation of the Eighth Amendment.
filed a second complaint (Doc. 57) over three months after
the Defendant filed his Answer (Doc. 42), and around ten
months after the Defendant filed his Motion to Dismiss (Doc.
26). Plaintiff did not move for leave to file this second
complaint, and Plaintiff does not satisfy the conditions for
amendment as a matter of course under Rule 15 of the Federal
Rules of Civil Procedure. Because Plaintiff filed no motion,
the Defendant filed no response. As Plaintiff is proceeding
pro se, however, the Court is bound to liberally
construe Plaintiff's filing. Erickson v. Pardus,
551 U.S. 89, 94 (2007). Therefore, it is
ORDERED that Plaintiff's second
complaint is construed as a motion for leave to file an
amended complaint. Plaintiff's motion, however, is
second or amended complaint, Plaintiff does not seek to
assert any new claims. Furthermore, while Plaintiff's
amended complaint provides a more detailed description of the
events leading up to the prisoner-on-prisoner attack that is
the subject of this action, Plaintiff's new factual
allegations are duplicative of information now available
elsewhere in the record, and in particular, from
most significant change Plaintiff seeks to work by his
amended complaint is to broaden the type of relief he
requests. In addition to the damages he originally sought
(Doc. 1, p. 6), Plaintiff now also asks for an injunction
ordering his transfer to a different facility, as well as a
declaration that his rights were violated. (Doc. 57, p. 8).
Plaintiff's request for an injunction appears to have
nothing to do with the harm at issue in this action.
Plaintiff asks for an order requiring his transfer due to
“continuous harassment, threats, & actions [taken]
against Plaintiff such as illegal search & seizure of
legal material thus violating Plaintiff's 4th
Amendment.” (Id.). These allegations are
unrelated to the Eighth Amendment failure-to-protect claim at
issue here, and they are therefore properly asserted in a
separate action. More importantly, because Plaintiff is no
longer housed at Macon State Prison where the alleged
prisoner-on-prisoner attack occurred, but rather is now
housed at Smith State Prison, Plaintiff's requests for
injunctive and declaratory relief are moot. Wahl v.
McIver, 773 F.2d 1169, 1173-74 (11th Cir. 1985)
(“an inmate's claim for injunctive and declaratory
relief in a section 1983 action fails to present a case or
controversy once the inmate has been transferred”).
Plaintiff's delay in filing, his failure to raise any new
claims or allege any new, non-duplicative facts, and given
that Plaintiff is not entitled to the new relief he requests,
Plaintiff's motion for leave to file an amended complaint
is denied. See Bryant v. Dupree, 252 F.3d 1161, 1163
(11th Cir. 2001) (listing undue delay and futility as grounds
for declining to grant leave to amend).
STANDARD FOR SUMMARY JUDGMENT
to Rule 56 of the Federal Rules of Civil Procedure, summary
judgment is proper “if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” The party
moving for summary judgment bears the burden of informing the
Court of the basis for its motion, and of citing “the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
” that support summary judgment. Celotex Corp. v.
Catrett, 477 U.S. 317, 322-24 (1986). In resolving
motions for summary judgment, the Court must view the
evidence in the light most favorable to the non-moving party.
Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014).
See also Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (“The evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in
MOTION FOR SUMMARY JUDGMENT
moves for summary judgment based not on the merits of his
claim, but rather as a sanction for the Defendant's
refusal to comply with this Court's October 17, 2017
Order compelling the Defendant to produce “Standard
Operating Procedures related to the feeding of inmates in
administrative segregation or protective custody.”
(Doc. 73, pp. 2-3; Doc. 74). Plaintiff asserts that he was
housed in protective custody at the time of McCrimmon's
attack due to gang-related threats, (Doc. 62-3, p. 18), and
Plaintiff alleges that the “SOPs” would have
demonstrated that Plaintiff “was not supposed to come
into contact [with] any other inmates.” (Doc. 76, p.
3). The Defendant acknowledges his inadvertent failure to
give these documents to Plaintiff within the time provided by
the Court, but the Defendant affirms to the Court that he has
since turned the documents over. (Doc. 75, pp. 1-2). The
record indicates that Plaintiff did not have access to these
documents when drafting his Response to the Defendant's
pending Motion for Summary Judgment. (Doc. 76, pp. 2-3).
37(b) of the Federal Rules of Civil Procedure provides courts
with ample discretion to enforce discovery orders, and Rule
37(b)(2)(A), in particular, lists the following as ...