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Smith v. Dozier

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

July 5, 2018

LESTER J. SMITH, Plaintiff,
v.
GREG DOZIER, et al., Defendants.

          ORDER and RECOMMENDATION

          THOMAS Q. LANGSTAFF UNITED STATES MAGISTRATE JUDGE

         Plaintiff filed this action pursuant to 42 U.S.C. § 1983 in July 2017.[1] By Order dated December 26, 2017, the Court allowed Plaintiff's Eighth Amendment claims, Americans with Disabilities Act (“ADA”) claims, and Rehabilitation Act (“RA”) claims to proceed. (Doc. 8). Pending are miscellaneous motions filed by Plaintiff, Plaintiff's motions seeking to amend and supplement his Complaint, Plaintiff's motion for injunctive relief, and Defendants' motions to dismiss. (Docs. 20, 28, 37, 38, 39, 40, 46, 47, 50, 62, 71, 89).

         ORDER

         Motions to amend/supplement

         In a series of motions, Plaintiff seeks to amend and/or supplement his claims. (Docs. 37, 38, 63). In motions filed on March 12, 2018, Plaintiff seeks to amend and/or supplement his claims, but he does not attach a proposed amendment or supplement. (Docs. 37, 38). These motions are DENIED. See U.S. ex rel. Atkins v. McInteer, 470 F.3d 1350, 1362 (11th Cir. 2006) (requiring the substance or an attachment of the proposed amendment); Bookman v. Burks Companies, 2009 WL 10665533, *15 (N.D.Ga. 2009) (without attached proposed amended complaint, court could not evaluate plaintiff's claims).

         In a proposed amended complaint filed on April 5, 2018, Plaintiff again sets out his claims. (Doc. 63). Plaintiff states that he filed this proposed amended complaint in response to the Court's notification Order regarding Defendants' March 2018 Motion to Dismiss. (Docs. 30, 63). The Court can discern no new claims of substance in this proposed amendment, only a recitation of the same claims with additional factual discussion. Accordingly, Plaintiff's proposed amended complaint, considered by the Court to be a motion to amend, is GRANTED, and Plaintiff's Complaint is deemed amended by Document 63. No further response is required by Defendants to this Amended Complaint.

         Miscellaneous motions

         Plaintiff's Motion for Stamp Filed Copy of Complaint is DENIED, and the Clerk has already responded to Plaintiff's request for a free copy of his 53-page original Complaint. (Docs. 19, 20). Plaintiff's motions seeking expedited review or rulings on pending motions are DENIED. (Docs. 50, 89). Plaintiff's Motion to Admonish the Clerk regarding the service of documents is DENIED. (Doc. 62). The docket reveals that the Clerk is promptly and properly serving Plaintiff with Court documents.

         Plaintiff's Motion for Discovery is DENIED. (Doc. 40). The stay of discovery granted by the Court is still in place. (Docs. 30, 74). Finally, Plaintiff's Motion to Appoint Counsel is DENIED. (Doc. 39). Generally speaking, no right to counsel exists in §1983 actions. Wahl v. McIver, 773 F.2d 1169, 1174 (11th Cir. 1985); Hardwick v. Ault, 517 F.2d 295, 298 (5th Cir. 1975); Mekdeci v. Merrel Nat'l. Lab., 711 F.2d 1510, 1522 n.19 (11th Cir. 1983). Appointment of counsel is a privilege that is justified only by exceptional circumstances. Lopez v. Reyes, 692 F.2d 15, 17 (5th Cir. 1982); Branch v. Cole, 686 F.2d 264, 266 (5th Cir. 1982); Ulmer v. Chancellor, 691 F.2d 209 (5th Cir. 1982).

         In deciding whether legal counsel should be provided, the Court typically considers, among other factors, the merits of the Plaintiff's claim and the complexity of the issues presented. See Holt v. Ford, 862 F.2d 850, 853 (11th Cir. 1989). Applying the standards set forth in Holt, it appears that at the present time, the essential facts and legal doctrines in this case are ascertainable by the Plaintiff without the assistance of court-appointed legal counsel and that the existence of exceptional circumstances has not been shown by the Plaintiff. The Court on its own motion will consider assisting Plaintiff in securing legal counsel if and when it becomes apparent that legal assistance is required.

         RECOMMENDATION

         Motions to dismiss

         Two (2) motions to dismiss have been filed on behalf of six (6) of the remaining eight (8) Defendants in this case. (Docs. 28, 71). A motion to dismiss can be granted only if Plaintiff's Complaint, with all factual allegations accepted as true, fails to “raise a right to relief above the speculative level”. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007).

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a ...

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