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 Defendants Harper and
Hollis' motion to dismiss (ECF No. 25) and Defendant
Utley's motion to set aside the default entered against
him (ECF No. 55). Also pending are Plaintiff's various
discovery motions (ECF Nos. 31, 32, 59), motions for
appointment of counsel (ECF Nos. 33, 62), motions regarding
Defendant Utley's default (ECF Nos. 48, 52, 56), motion
for an extension of time (ECF No. 34), motion to amend the
complaint (ECF No. 40), motion to declare a Georgia
Department of Corrections (GDOC) Standard Operating Procedure
(SOP) unconstitutional (ECF No. 63), and motion to return the
case to Judge Royal (ECF No. 71). For the reasons explained
below, Plaintiff's motions for an extension of time and
to amend as provided in the attached amendment are granted.
His motions for appointment of counsel, discovery motions,
motion to declare the SOP unconstitutional, and motion to
return the case to United States District Judge Royal are
denied. Because Defendant Utley's motion to set aside his
default is granted, Plaintiff's motion for default
judgment is denied. It is recommended that Defendants Harper
and Hollis' motion to dismiss be granted for
Plaintiff's failure to exhaust.
states that on October 30, 2014, he was attacked by a fellow
inmate at Dooly State Prison. Compl. 10, ECF No. 1. Plaintiff
alleges he “was blindsided with a blow to [his] face
while trying to leave [his] cell and avoid trouble” and
that he “was knocked-out” by the blow.
Id. Plaintiff notified prison officials, who took
photos of the injuries, confirmed Plaintiff was attacked by
another inmate, and placed Plaintiff in “‘the
hole' . . . where prisoners are sent to be
punished” with no other treatment. Id. The
next day, Plaintiff was transported to the Taylor Regional
Trauma Center by Defendants Harper and Hollis,  two prison
guards. Suppl. Compl. 2, ECF No. 13. At the hospital, x-rays
revealed Plaintiff suffered a badly fractured jaw. Compl. 10.
Although the emergency room doctor stated that Plaintiff
“needed immediate treatment, ” Defendants Harper
and Hollis refused and stated that “Atlanta”
would not pay for Plaintiff's care. Id.; see
also Suppl. Compl. 2. Defendants Harper and Hollis
returned Plaintiff to Dooly State Prison and placed him back
in the hole until November 4, 2014; Plaintiff received little
to no medical attention until he was transferred to Augusta
State Medical Prison on that date. Suppl. Compl. 2; Compl.
November 5, 2014, Plaintiff had surgery to remove several
teeth and implant a metal plate in his jaw. Compl. 10.
Plaintiff was transferred back to Dooly State Prison in
February 2015, and received no additional treatment for the
next eleven months, until his aunt called the governor.
Id. Plaintiff then saw several medical professionals
who referred Plaintiff to the prison dentist for further
treatment consisting of a custom mouth guard and medication
to relax the nerves in Plaintiff's jaw. Plaintiff alleges
that “[n]o dental treatment was done, ” until
April 25, 2017, when Plaintiff received surgery to remove two
teeth at the Augusta State Medical Prison. Id.;
see also Suppl. Compl. 2.
preliminary review of Plaintiff's Complaint and
Supplemental Complaint, Plaintiff's claims for deliberate
indifference against Defendants Harper, Hollis, and the Dooly
State Prison dentist, Dr. Utley, were allowed to proceed.
Order & R. 6-8, Jun. 29, 2017, ECF No. 14. Service was
ordered on each of the defendants at that same time.
Id. at 14-18. Defendants Harper and Hollis timely
executed waivers of service (ECF No. 23, 24) and filed a
motion to dismiss (ECF No. 25). Dr. Utley, however, was not
personally served until October 3, 2017 (ECF No. 39).
December 4, 2017, the Court received Plaintiff's
application for a clerk's entry of default against
Defendant Utley (ECF No. 53). The clerk properly entered
default against Defendant Utley that same day. Defendant
Utley moved to set aside the entry of default on December 18,
2017 (ECF No. 55). The Court received Plaintiff's motion
for default judgment against Defendant Utley (ECF No. 56)
that same day.
Motion to Appoint Counsel
requests that he be appointed counsel. (ECF Nos. 33, 62.)
Pursuant to 28 U.S.C. § 1915(e)(1), the district court
“may request an attorney to represent any person unable
to afford counsel.” There is, however, “no
absolute constitutional right to the appointment of
counsel” in a § 1983 lawsuit. Poole v.
Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987).
Appointment of counsel is a privilege that is justified only
by exceptional circumstances. Lopez v. Reyes, 692
F.2d 15, 17 (5th Cir. 1982). In deciding whether legal
counsel should be provided, the court considers, among other
factors, the merits of Plaintiff's claim and the
complexity of the issues presented. Holt v. Ford,
682 F.2d 850, 853 (11th Cir. 1989). Here, Plaintiff fails to
present any extraordinary circumstances which justify the
appointment of counsel in this case-he has filed pleadings,
motions, and responses to Defendants' motions.
Plaintiff's request for court-appointed counsel is
Motions for Discovery
Harper and Hollis filed a motion to stay discovery (ECF No.
26) along with their motion to dismiss Plaintiff's
complaint. The motion to stay was granted by Text-only Order
on September 5, 2017. (ECF No. 28.) Plaintiff thereafter
filed three motions for discovery-a motion containing
“document demands” (ECF No. 31), a motion for
medical and dental records (ECF No. 32), and a motion for
Plaintiff's medical records to be submitted to the Court
in support of his motion for default judgment (ECF No. 59).
Since discovery is stayed, these motions are denied.
Plaintiff may seek discovery at a later date.
is reminded that discovery should not be filed with the
Court, but instead sent directly to opposing counsel.
Additionally, Plaintiff is able to obtain his own medical
records through procedures established by the GDOC. Finally,
pursuant to Federal Rule of Civil Procedure Rule 37(a)(1) and
Local Civil Rule 37, Plaintiff is notified that he must
confer in good faith with the Defendants concerning any
discovery issue prior to filing any motions with
this Court attempting to compel discovery.
C.Motion to ...