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Smith v. Powell

United States District Court, M.D. Georgia, Macon Division

February 6, 2018

ROY MANDELL SMITH, aka GOD ALMIGHTY, Plaintiff,
v.
WILLIAM POWELL, Defendant.

          ORDER AND REPORT AND RECOMMENDATION

          STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE.

         Presently pending before the Court are Plaintiff's motions for injunctive relief, summary judgment, judgment on the pleadings, and for a final order. (ECF Nos. 11, 17, 29, 31, 35, 36.) For the reasons explained below, it is recommended that Plaintiff's motions for injunctive relief be denied. His remaining motions are denied.

         BACKGROUND

         Plaintiff states he was placed in the Special Management Unit (“SMU”) Tier III program when he was transferred to the Georgia Diagnostic and Classification Prison (“GDCP”) on October 17, 2014. (ECF No. 1 at 4). He remains in the SMU despite “never receiving any written infraction or disciplinary reports to justify” the placement. (ECF No. 1 at 4).

         Plaintiff focuses on Deputy Warden William Powell's refusal to remove him from the SMU starting on May 26, 2016 and continuing until the present day. Compl. 5. Plaintiff claims that Powell's refusal constitutes “ongoing retaliation.” Compl. 5. Specifically, Plaintiff states that his name “Roy Mandell Smith” translates to “God Almighty” and Powell refuses to release him from involuntary confinement in the SMU because he calls himself “God Almighty.” Compl. 1, 5. Plaintiff alleges that he sought to be released from the SMU during his ninety-day reviews on May 26, 2016, August 25, 2016, October 25, 2016, January 3, 2017, and April 5, 2017. Compl. 5. But, without justification, Powell ordered that he remain in the SMU. Compl. 5. According to Plaintiff, he has not received a disciplinary report, attended a disciplinary hearing, or been found guilty of any underlying offense. Instead, Powell is simply punishing him by involuntarily confining him in the SMU because Plaintiff claims he is God. Compl. 5.

         After a preliminary review of Plaintiff's Complaint, only his claim against Defendant Powell for retaliation was allowed to proceed. Prior to Defendant answering the Complaint, Plaintiff filed a motion titled and docketed as a “demand for injunctive relief and motion for summary judgment.” (ECF No. 11.) Therein, Plaintiff seeks judgment because Defendant failed to file an answer. Plaintiff then filed a motion for a final judgment from the magistrate judge. (ECF No. 17.) He states that the parties have fully consented to the magistrate judge hearing the case and asks the undersigned to issue a final order. Plaintiff then filed a motion seeking injunctive relief against Defendant and several non-parties for retaliating against Plaintiff by not holding 90 day SMU review hearings. (ECF No. 29.) On December 19, 2017, Plaintiff filed another motion titled a motion for injunctive relief (ECF No. 31), but which merely again seeks a final judgment or to set trial for 2018. Plaintiff then on January 5, 2018, filed another motion seeking a final judgment claiming that Defendant's request for extensions of the discovery period proves that Defendant is violating his constitutional rights. (ECF No. 35.) Finally, on January 24, 2018, Plaintiff filed a motion seeking injunctive relief claiming that his classification to SMU was again reviewed without a hearing. (ECF No. 36.) These motions are ripe for review.

         DISCUSSION

         I. Plaintiff's motion for an entry of default

         Although titled as a motion for injunctive relief and summary judgment, Plaintiff's motion filed on July 11, 2017, is best construed as a motion for entry of default against Defendant Powell. Therein, Plaintiff states that Defendant was ordered to file an answer or response but he has failed to do so. Consequently, Plaintiff contends he is entitled to judgment. Mot. for Inj. Relief & Summ. J. 1, ECF No. 11.

         Rule 55 of the Federal Rules of Civil Procedure provides that a clerk “must enter [a] party's default” when that party “failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise.” Federal Rules of Civil Procedure Rule 4 covers the issue of service. Rule 4(d) states that when a waiver of service is requested, as was in this case, a defendant must be given “a reasonable time of at least 30 days after the request was sent” to return the waiver. Fed.R.Civ.P. 4(d)(1)(F). Additionally, if a defendant files a waiver, he has “60 days after the request was sent” to file an answer or responsive pleading to the complaint. Fed.R.Civ.P. 4(d)(3).

         Although Defendant Powell did not file the waiver of service in this action, it is clear that he waived service. The USM 285 Process Receipt and Return was issued on June 6, 2017. (ECF No. 8.) The Process Receipt and Waiver of Service were mailed the following day on June 7, 2017. (ECF No. 9.) Assuming Defendant waived service, he had sixty days from June 6 within which to file an answer or other responsive pleading.

         Defendant Powell timely filed an Answer on August 4, 2017. (ECF No. 16.) Plaintiff's assertion that Defendant failed to answer or otherwise respond is belied by the record. Plaintiff is not entitled to an entry of default or a default judgment. His motion (ECF No. 11) is consequently denied.

         II. Plaintiff's motions for a final judgment by the magistrate judge

         Plaintiff also files three motions seeking a “final judgment.” In the first, he claims that the parties have fully consented to the jurisdiction of the magistrate judge and thus the undersigned should issue a final judgment. (ECF No. 17.) In the second, he contends that Defendant's counsel asked for an extension of time to complete discovery as a “stall tactic” and that Defendant will be unable to meet the extended discovery deadline. (ECF No. 31.) Plaintiff further seeks that a trial be set for January 2018 and judgment be entered in his favor. Finally, Plaintiff filed a third motion seeking judgment. (ECF No. 35.) Therein, Plaintiff argues that ...


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