United States District Court, M.D. Georgia, Macon Division
ORDER AND REPORT AND RECOMMENDATION
STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE
before the court is Plaintiff's motions for summary
judgment (ECF Nos. 35, 44), appointed counsel (ECF No. 34),
and compelled discovery (ECF No. 39), as well as
Defendants' motion for summary judgment (ECF No. 52). For
the reasons explained below, it is recommended that
Defendants' motion for summary judgment be granted and
Plaintiff's claims be dismissed.
action arises from Plaintiff's placement in the Tier II
administrative segregation program at Hancock State Prison.
According to Plaintiff, “[t]he Tier II program is part
of a comprehensive facility-wide-stratification plan”
designed to “manage the institutional conduct and
programmatic needs of the assigned population.” Compl.
5, ECF No. 1. Inmates placed in the Tier II program are
assigned to “the most restrictive cells designed to
house assaultive offenders who are violent [and]
aggressive” and “refuse to comply with Tier II
conduct program requirements.” Id. at 6. The
Tier II program has three phases, which inmates progress
through “based upon his or her behavior [and] ability
to adjust.” Id. at 7. Plaintiff claims he was
transferred to Hancock State Prison on September 6, 2017, and
placed in Tier II administrative segregation without
“an official mandatory review hearing.” Compl. 8.
On February 23, 2018, the Court, after conducting a
preliminary screening of Plaintiff's claims, allowed all
of his Fourteenth Amendment due process claims based on his
Tier II placement to proceed for further factual development.
Order 8, ECF No. 10.
Plaintiff's Motion to Appoint Counsel
moves for the Court to appoint counsel to assist in this
case. Mot. to Appoint Counsel 1, ECF No. 34. The Court denied
Plaintiff's prior motion to appoint counsel (ECF No. 3)
because he failed to show extraordinary circumstances
justifying the appointment of counsel. Order 1-2, Nov. 29,
2017, ECF No. 6. Now, Plaintiff argues counsel should be
appointed for him because his claims have proceeded past
preliminary screening, require complex discovery, and he
faces “extreme restrictions” in prison, including
restricted library access. Mot. to Appoint Counsel 1-2.
is “no absolute constitutional right to the appointment
of counsel” in a § 1983 lawsuit. Poole v.
Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987) (per
curiam). Indeed, “appointment of counsel in a civil
case . . . is a privilege that is justified only by
exceptional circumstances.” Wahl v. McIver,
773 F.2d 1169, 1174 (11th Cir. 1985). Such circumstances do
not exist here. In deciding whether legal counsel should be
provided, the Court considers, inter alia, the
merits of Plaintiff's claims and the complexity of the
issues presented. Holt v. Ford, 862 F.2d 850, 853
(11th Cir. 1989) (en banc). The facts of this case are not
overly complicated and the law governing Plaintiff's
claims is neither novel nor complex. Accordingly,
Plaintiff's motions seeking appointed counsel (ECF No.
34) is denied.
Plaintiff's Motion to Compel
filed a motion to compel discovery (ECF No. 39) on July 16,
2018. Therein, he asks the Court to compel Defendants
Hargrove, Clark, Kendrick, [and] Toby “to answer
interrogatories” which they “have failed to
answer[.]” Mot. to Compel 1, ECF No. 39. Plaintiff also
requests an order compelling Defendants to produce documents
“for inspection and copying[.]” Id.
Defendants responded by insisting they had not received any
written discovery requests from Plaintiff and noting that
Plaintiff failed to attempt to resolve any discovery dispute
prior to filing his motion-as “required by Rule 37 of
the Federal Rules of Civil Procedure and also by this
Court's Local Rules.” Resp. to Mot. to Compel 1,
ECF No. 40.
courts are “allowed a range of choice” in
reviewing motions to compel. Holloman v. Mail-Well
Corp., 443 F.3d 832, 837 (11th Cir. 2006). For example,
district courts “can deny a motion to compel 
discovery if it concludes that the questions are
irrelevant.” Burger King Corp. v. Weaver, 169
F.3d 1310, 1320 (11th Cir. 1999). Here, Defendants have
apparently not actually received discovery requests from
Plaintiff so cannot not be described as “failing to
make disclosure or discovery” in violation of
procedural rules. See Fed. R. Civ. P. 37(a)(1).
Further, Plaintiff has not described his proposed
interrogatories or requested documents sufficiently for the
Court to ascertain whether they are even relevant.
Accordingly, Plaintiff's motion to compel discovery is
Summary Judgment Motions
argues that he is entitled to summary judgment because he has
been “placed in indefinite segregation that is punitive
in nature . . . without being notified of the alleged
misconduct for which he was segregated” and has not
been “afforded an opportunity to appeal his segregation
assignment” in violation of his constitutional rights.
Mot. for Summ. J. 2, ECF No. 44. Defendants respond by
insisting that Plaintiff is not entitled to summary judgment
because his motions do not comply with applicable procedural
rules and do not have sufficient evidentiary support. Resp.
to Pl.'s Mot. for Summ J. 1-2, ECF No. 53. Further,
Defendants move for summary judgment in their favor claiming,
inter alia, that Plaintiff failed to exhaust his
administrative remedies. Br. in Supp. Mot. for Summ. J. 2,
16, ECF No. 52-2. Plaintiff was notified of Defendants'
motion but did not respond to it. Notice, ECF No. 54.
to exhaust administrative remedies “is a matter in
abatement and not generally an adjudication on the merits
[and, therefore, ] is not ordinarily the proper subject for a
summary judgment [motion].” Bryant v. Rich,
530 F.3d 1368, 1374-75 (11th Cir. 2008). If such an argument
is raised in a motion for summary judgment, it should be
treated as if it were raised in a motion to dismiss.
Id. at 1375. Accordingly, the Court has analyzed
Defendants' failure to exhaust argument as if it were
brought in a motion to dismiss. Because Plaintiff did not
exhaust his administrative ...