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Woody v. Perry

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

May 25, 2018

JEREMY JAY WOODY, Plaintiff,
v.
Warden CLINTON PERRY, et al., Defendants.

         Proceedings Under 42 U.S.C. §1983 Before the U.S. Magistrate Judge

          REPORT AND RECOMMENDATION

          CHARLES H. WEIGLE, UNITED STATES MAGISTRATE JUDGE

         Before the Court are two motions: (1) a motion to dismiss filed by Defendants Clinton Perry and Walter Berry, (Doc. 16), and (2) a motion to amend filed by Plaintiff Jeremy Jay Woody. (Doc. 22). As discussed below, it is RECOMMENDED that the Defendants' motion to dismiss be GRANTED IN PART and DENIED IN PART such that Plaintiff's First Amendment claim for prospective injunctive relief be DISMISSED as moot. It is further RECOMMENDED that Plaintiff's motion to amend be GRANTED IN PART and DENIED IN PART such that Plaintiff be allowed to pursue monetary damages under Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act based on events occurring during the term of Plaintiff's incarceration at Central State Prison.

         BACKGROUND AND FAILURE TO PROSECUTE

         In October 2016, this Court received from Plaintiff a standard-form Section 1983 complaint in which Plaintiff described his life as a deaf inmate at Central State Prison (CSP). (Doc. 1). Plaintiff informed the Court that his “native language [is] American Sign Language, ” (Doc. 1, p. 8), and Plaintiff argued that the lack of video relay service (VRS) equipment at CSP prevented Plaintiff from communicating with family and friends for a period of around three years. (Doc. 1, pp. 6-7). Much of the substance of Plaintiff's complaint related to a prison grievance Plaintiff claims to have filed regarding the lack of VRS equipment at CSP. (Doc. 1, pp. 6-13). Plaintiff also complained that the lack of sign-language interpreters at CSP prevented Plaintiff from participating in educational and training programs, led to multiple wrongful convictions for prison disciplinary infractions, and made it difficult for Plaintiff to seek treatment for two medical conditions: melanoma and a hernia. (Doc. 1, pp. 14-16). As relief, Plaintiff asked for monetary damages as well as the assistance of an interpreter, “communications with up to date technology, ” and “deaf advocates and deaf services at the prison.” (Doc. 1, p. 17).

         On screening under 28 U.S.C. § 1915A, the Court allowed Plaintiff to proceed only on a First Amendment claim, and only against two Defendants: Clinton Perry, the current CSP warden, and Walter Berry, the former CSP warden. (Doc. 6, pp. 6-7; Doc. 7, pp. 1-2). See Pope v. Hightower, 101 F.3d 1382, 1385 (11th Cir. 1996) (discussing “the First Amendment right to communicate with family and friends”). The Court determined that Plaintiff failed to state claims under Section 1983 for Eighth and Fourteenth Amendment violations. (Doc. 6, pp. 7-10). The Court also determined that Plaintiff failed to state claims based on violations of the Rehabilitation Act (RA) and the Americans with Disabilities Act (ADA). (Doc. 6, pp. 10-11).

         On August 8, 2017, the same day Defendants Perry and Berry filed their joint answer, (Doc. 14), Plaintiff was released from CSP on probation. (Doc. 22, p. 1). After a period of homelessness, Plaintiff temporarily settled in Hall County, Georgia. (Doc. 22, pp. 1-3). Plaintiff states that he informally notified this Court of the change in his address “as soon as I had access to a videophone.” (Doc. 22, p. 3). In a recent filing, Plaintiff has also informed the Court that he is “not fluent in English, ” and that he “only know[s] some words in English.” (Doc. 22, pp. 4-5).

         The Defendants filed their pending motion to dismiss on September 28, 2017. (Doc. 16). In that motion, the Defendants ask for a dismissal on two grounds: (1) mootness resulting from Plaintiff's release, and (2) failure to prosecute under Federal Rule of Civil Procedure 41(b). Notwithstanding Plaintiff's itinerancy and his inability to communicate fluently using the English language, Plaintiff filed a timely response to the Defendants' motion on October 23, 2017. (Docs. 17, 18). In that response, Plaintiff also informed the Court of a new change in his address: Plaintiff now resides in Clayton County, Georgia. (Doc. 18, p. 1; Doc. 22, p. 4). Plaintiff subsequently filed a motion to amend, which is also pending before the Court. (Doc. 22).

         Under the circumstances, a dismissal for failure to prosecute is not warranted. Eleventh Circuit caselaw establishes a “strong preference that cases be heard on the merits, ” Wahl v. McIver, 773 F.2d 1169, 1174 (11th Cir. 1985), and Plaintiff's timely response to the Defendants' pending motion to dismiss makes a resolution on the merits possible. Moreover, the record establishes that Plaintiff faced ample practical difficulties upon his release from CSP- difficulties arising from Plaintiff's homelessness and from his lack of English fluency. Given these difficulties, there is ample reason to conclude that Plaintiff was unable formally to notify this Court of the change in his address based neither on Plaintiff's own misconduct nor on circumstances within Plaintiff's control. See, e.g., Link v. Wabash R. Co., 370 U.S. 626, 635 (1962). There is little reason, in other words, to conclude that Plaintiff deliberately disregarded this Court's instructions promptly to advise of any change in address. (Doc. 7, p. 4). Finally, limitations concerns may also weigh against a dismissal for failure to prosecute at this late date. See, e.g., Powell v. Harris, 628 Fed.Appx. 679, 680-81 (11th Cir. 2015). Accordingly, insofar as the Defendants move for a dismissal based on Plaintiff's failure to prosecute, it is RECOMMENDED that the Defendants' motion to dismiss be DENIED.

         MOOTNESS

         The Defendants also move for a dismissal on the ground that Plaintiff's August 18, 2017 release from CSP renders moot his request for injunctive relief. (Doc. 16-1, pp. 3-5). As previously discussed, this Court allowed Plaintiff to proceed on a First Amendment claim based on allegations that the lack of up-to-date technology and other “deaf services” at CSP prevented Plaintiff from communicating with family and friends during his incarceration. (Doc. 6, pp. 6-7). The Court allowed Plaintiff to seek only prospective injunctive relief in order to “end a continuing violation of federal law.” (Doc. 7, pp. 1-2). With regard to monetary damages, the Court determined that Plaintiff failed to state a claim. (Doc. 7, p. 2).

         The Defendants are correct in asserting that Plaintiff's release from CSP renders his request for injunctive relief moot. See, e.g., Zatler v. Wainwright, 802 F.2d 397, 399 (11th Cir. 1986) (“In view of Zatler's subsequent release, we find that his claims for declaratory and injunctive relief are now moot”). Accordingly, insofar as the Defendants seek a dismissal of Plaintiff's First Amendment claim for injunctive relief on grounds of mootness, it is RECOMMENDED that the Defendants' motion to dismiss be GRANTED.

         LEAVE TO AMEND

         The mootness resulting from Plaintiff's release is not dispositive of this action, however, because Plaintiff has filed a motion for leave to amend in which he seeks (i) to cure his previously-raised claims, (ii) to raise new claims relating to his current probation, and (iii) to add three new Defendants: the Georgia Department of Corrections, the Georgia Department of Community Supervision, and the Hall County Sheriff's Office. (Doc. 22). This Court must “freely give leave” to amend when justice so requires, Fed.R.Civ.P. 15(a), and requests to amend typically are denied only for reasons such as undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies, or futility. Foman v. Davis, 371 U.S. 178, 182 (1962). Pro se parties, in particular, have a strong interest in attempting to cure their claims through an amendment. See Watkins v. Hudson, 560 Fed.Appx. 908, 911 n.2 (11th Cir. 2014).

         In accordance with the analysis below, it is RECOMMENDED that Plaintiff's motion to amend be GRANTED IN PART and DENIED IN PART such that Plaintiff be allowed to seek monetary damages based on alleged violations of the RA and the ADA during the term of Plaintiff's incarceration at CSP.

         A. First Amendment

         As previously discussed, the Court allowed Plaintiff to seek prospective injunctive relief against Defendants Perry and Berry based on Plaintiff's inability to communicate with family and friends while incarcerated. Plaintiff's subsequent release from CSP renders his request for injunctive relief moot. The Court further ruled, on screening, that Plaintiff failed to state a claim for monetary damages because “Plaintiff failed to specify which Warden was responsible for [the denial of deaf communication services] or allege any other personal action by either Defendant Perry or Berry.” (Doc. 7, p. 2). See, e.g., Brown v. Crawford, 906 F.2d 667, 671 (11th Cir. 1990) (“Supervisory liability occurs either when the supervisor personally participates in the alleged constitutional violation or when there is a causal connection between actions of the supervising official and the alleged constitutional deprivation”).

         Plaintiff's amended complaint does not address the Court's concerns, and it therefore does not cure Plaintiff's First Amendment deaf communication claim. While Plaintiff's new allegations provide additional details regarding the general lack of deaf services at CSP, Plaintiff's new allegations do not sufficiently show any personal action or causal connection on the part of Defendants Perry and Berry, or any other identifiable individual. See, e.g., (Doc. 22, p. 5) (“I tried to explain [my inability to use a teletypewriter (TTY)] to the guards many times, but they did not understand”); (Doc. 22, p. 5) (I again asked for help so I could use the TTY machine to contact my hearing family and friends[, but the] officers said no”); (Doc. 22, p. 6) (“I filed a grievance about not having any access to telephones in prison …. The prison denied this grievance”); (Doc. 22, p. 6) (“The prison violated my rights under the First Amendment”). Accordingly, insofar as Plaintiff sought to reinstate a First Amendment deaf communication claim for monetary damages, Plaintiff's motion to amend should be DENIED as futile.

         Plaintiff's new allegations do appear to make out a First Amendment retaliation claim against Deputy Warden John Fagan, whom Plaintiff named as a Defendant in his initial Complaint, but this retaliation claim is barred by the applicable two-year statute of limitations. Williams v. City of Atlanta, 794 F.2d 624, 626 (11th Cir. 1986). In his amended complaint, Plaintiff asserts that Defendant Fagan “put [Plaintiff] in the hole, ” meaning solitary confinement, “as punishment” for filing grievances regarding a non-functioning teletypewriter. (Doc. 22, p. 11). Eleventh Circuit caselaw establishes that prison grievances regarding conditions of confinement are protected speech, and that the First Amendment proscribes disciplinary action taken in response to such grievances. O'Bryant v. Finch, 637 F.3d 1207, 1212 (11th Cir. 2011). By Plaintiff's own description, though, the alleged retaliatory action occurred “[i]n the summer of 2015.” (Doc. 22, p. 11). Under the prison mailbox rule, Plaintiff filed his amended complaint on November 1, 2017, more than two years after the alleged ...


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