United States District Court, M.D. Georgia, Macon Division
LESTER J. SMITH, Plaintiff,
GREG DOZIER, et al., Defendants.
ORDER and RECOMMENDATION
Q. LANGSTAFF UNITED STATES MAGISTRATE JUDGE
filed this action pursuant to 42 U.S.C. § 1983 in July
2017. 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).
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).
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
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.
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).
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.
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