United States District Court, S.D. Georgia, Waycross Division
LISA GODBBEY WOOD UNITED STATES DISTRICT COURT
matter is before the Court on the Magistrate Judge's
March 20, 2018 Report and Recommendation. Dkt. No. 61. In the
Report and Recommendation, the Magistrate Judge recommended
that the Court grant in part and deny in part Defendants'
Motion to Dismiss, dkt. no. 41, filed on behalf of Defendants
Gramiak, Johnson, Crosby, Nunn, Kicklighter, Brad, Pratt,
Cox, Adams, Jenkins, and the Georgia Department of
Corrections. Following the Report and Recommendation,
Defendants Swords and Stewart filed a Motion to Join
Defendants' Motion to Dismiss. Dkt. No. 69. Additionally,
Plaintiff lodged Objections to the Report and Recommendation,
dkt. no. 67, but, after being directed by the Court to
indicate whether he opposed Defendants Swords and
Stewart's Motion, dkt. no. 69, Plaintiff filed a Response
that did not oppose this Motion, dkt. no. 71.
an independent and de novo review of the entire
record, the undersigned concurs with the Magistrate
Judge's Report and Recommendation as supplemented herein.
Accordingly, the Court OVERRULES
Plaintiff's Objections and ADOPTS the
Magistrate Judge's Report and Recommendation as the
opinion of the Court. Thus, for the reasons and in the manner
set forth by the Magistrate Judge, the Court GRANTS
in part and DENIES in part
Defendants' Motion to Dismiss. Dkt. No. 41. Additionally,
the Court DENIES Plaintiff s request for
appointment of counsel contained in Plaintiff's
Objections. Further, the Court GRANTS
Defendant Swords and Stewart's Motion to Join
Defendants' Motion to Dismiss. Dkt. No. 69.
Plaintiff's Objections to the Report and
who is disabled, objects to the recommended dismissal of his
Americans with Disabilities Act ("ADA") claim for
injunctive relief as to an allegedly unsafe walkway he was
subjected to while an inmate at Ware State Prison in
Waycross, Georgia. Id. Plaintiff also complains of
allegedly unsafe ambulatory conditions and ADA violations at
Georgia State Prison in Reidsville, Georgia, the prison he
was transferred to after being incarcerated at Ware State
Prison, and at Coastal State Prison in Garden City, Georgia,
where he is presently incarcerated. Id. As to
Coastal State Prison, Plaintiff additionally claims that the
showers there are in "dire need of repair" and are
not suitably maintained for disabled inmates. Id.
as noted by the Magistrate Judge, objections to a report and
recommendation are not a proper vehicle "through which
to make new allegations or present additional evidence."
Dkt. No. 61, p. 62; see also Williams v. McNeil, 557
F.3d 1287, 1290-91 (11th Cir. 2009) (determining that a
district court does not abuse its discretion when it refuses
to consider arguments not presented to the magistrate judge).
Plaintiff's Objections improperly raise new and unrelated
claims regarding Georgia State Prison and Coastal State
Prison that cannot be asserted in his present cause of action
regarding the conditions of his confinement at Ware State
Prison. Moreover, contrary to Plaintiff's understanding,
the Magistrate Judge did not recommend the outright dismissal
of Plaintiff's ADA claims. Rather, the Magistrate Judge
correctly found that Plaintiff's claims for injunctive
relief as to the walkway at Ware State Prison were moot in
light of Plaintiff s transfer to a different facility. See
Wahl v. Mclver, 773 F.2d 1169, 1173-74 (11th Cir.
1985) (per curiam).
for the reasons stated by the Magistrate Judge, the Court and
GRANTS in part and DENIES in
part Defendants' Motion to Dismiss, dkt. no. 41.
The Court DISMISSES all of Plaintiff's
remaining claims against Defendants Ritter, Pratt, Cox,
Adams, Jenkins, and Crosby. The Clerk of Court shall reflect
on the docket that these five Defendants are
TERMINATED as Defendants in this case. The
Court DISMISSES Plaintiff s failure to
intervene claim against Defendant Brad;
DISMISSES Plaintiffs deliberate indifference
to serious medical needs claims against Defendants Gramiak
and Johnson; DISMISSES Plaintiff's
deliberate indifference to health and safety claims against
Defendants Nunn, Kicklighter, and Brad; and DISMISSES
as moot Plaintiff's claim for injunctive relief
as to the challenged walkway.
other Eighth Amendment claims against Defendants Nunn,
Kicklighter, Brad, Gramiak, and Johnson, First Amendment
claims against Defendants Gramiak and Johnson, and Americans
with Disability Act claims against Defendant Georgia
Department of Corrections shall remain pending before the
Plaintiff s Motion to Appoint Counsel
Objections, Plaintiff also moves for the appointment of
counsel. Plaintiff states that he "is suffering from
PTSD and depression due to the original filing and
doesn't have the mental capacity to continue arguments in
his case." Dkt. No. 67, p. 2. In this civil case,
Plaintiff has no constitutional right to the appointment of
counsel. Wright v. Langford, 562 Fed.Appx. 769, 777
(11th Cir. 2014) (per curiam) (citing Bass v.
Perrin, 170 F.3d 1312, 1320 (11th Cir. 1999)).
"Although a court may, pursuant to 28 U.S.C. §
1915(e)(1), appoint counsel for an indigent plaintiff, it has
broad discretion in making this decision, and should appoint
counsel only in exceptional circumstances." Id.
(citing Bass, 170 F.3d at 1320).
of counsel in a civil case is a "privilege that is
justified only by exceptional circumstances, such as where
the facts and legal issues are so novel or complex as to
require the assistance of a trained practitioner."
Fowler v. Jones, 899 F.2d 1088, 1096 (11th Cir.
1990) (citing Poole v. Lambert, 819 F.2d 1025, 1028
(11th Cir. 1987); Wahl v. Mclver, 773 F.2d 1169,
1174 (11th Cir. 1985)). The Eleventh Circuit Court of Appeals
has explained that "the key" to assessing whether
counsel should be appointed "is whether the pro
se litigant needs help in presenting the essential
merits of his or her position to the court. Where the facts
and issues are simple, he or she usually will not need such
help." McDaniels v. Lee, 405 Fed.Appx. 456, 457
(11th Cir. 2010) (per curiam) (quoting Kilgo v.
Ricks, 983 F.2d 189, 193 (11th Cir. 1993)).
Court has reviewed the record and pleadings in this case and
finds no "exceptional circumstances" warranting the
appointment of counsel. While the Court understands that
Plaintiff is incarcerated and is currently suffering from
mental distress, this Court has repeatedly found that
"prisoners do not receive special consideration
notwithstanding the challenges of litigating a case while
incarcerated." Hampton v. Peeples, No. CV
614-104, 2015 WL 4112435, at *2 (S.D. Ga. July 7, 2015).
"Indeed, the Eleventh Circuit has consistently upheld
district courts' decisions to refuse appointment of
counsel in 42 U.S.C. § 1983 actions similar to this case
for want of exceptional circumstances." Id.
(citing Smith v. Warden, Hardee Corr. Inst., 597
Fed.Appx. 1027, 1030 (11th Cir. 2015); Wright, 562
Fed.Appx. at 777; Faulkner v. Monroe Cty. Sheriff's
Dep't, 523 Fed.Appx. 696, 702 (11th Cir. 2013);
McDaniels, 405 Fed.Appx. at 457; Sims v.
Nguyen, 403 Fed.Appx. 410, 414 (11th Cir. 2010);
Fowler, 899 F.2d at 1091, 1096; and Wahl,
773 F.2d at 1174). This case is not so complex legally or
factually to prevent Plaintiff from presenting "the
essential merits of his position" to the Court,
notwithstanding his current mental state. In fact,
Plaintiff's Objections offer proof of his continued
ability to present his case to the Court. For these reasons,
the Court DENIES Plaintiff's Motion to
Defendants Swords and Stewart's Motion to Join
Defendants' Motion to Dismiss Dkt. No. 69
noted in the Magistrate Judge's Report and
Recommendation, Defendants' Motion to Dismiss was not
filed on behalf of several Defendants in this case, including
Defendants Swords and Stewart. Dkt. No. 61, p. 1 n.l. The
Court set aside Defendants Swords and Stewart's default,
dkt. no. 68, and these Defendants now move to join and
incorporate fully the subject Motion to Dismiss, dkt. no. 69.
Defendants Swords and Stewart contend that Plaintiff's
factual allegations against Defendants Nunn and Kicklighter,
who were included in the Magistrate Judges' recommended
dismissal, are "essentially the same" as ...