United States District Court, M.D. Georgia, Macon Division
ORDER AND REPORT AND RECOMMENDATION
STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE
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.
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).
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.
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.
Plaintiff's motion for an entry of default
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.
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).
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.
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.
Plaintiff's motions for a final judgment by the
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 ...