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Tabb v. Toby

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

February 4, 2019

JOSEPH TABB, Plaintiff,
Warden TOBY, et al., Defendants.



         Pending 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.


         This 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.


         I. Plaintiff's Motion to Appoint Counsel

         Plaintiff 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.

         There 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.

         II. Plaintiff's Motion to Compel

         Petitioner 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.

         District 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 denied.

         III. Summary Judgment Motions

         Plaintiff 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.[1] 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.

         Failure 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 ...

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