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Donaldson v. Normand

United States District Court, S.D. Georgia, Waycross Division

February 27, 2019

COREY ALLAN DONALDSON, Plaintiff,
v.
TONY NORMAND, Defendant.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE

         Plaintiff, a former federal prisoner now residing in Australia, filed this action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), concerning certain events that occurred while he was incarcerated at D. Ray James Correctional Facility (“D. Ray James”) in Folkston, Georgia. Defendant Normand filed a Motion to Dismiss, to which Plaintiff filed a Response. Docs. 65, 67. Plaintiff also filed a series of other motions: Motion for Emergency Summary Judgment, doc. 62; Motion to Consider Facts in the Interest of Justice, doc. 82, Motion for Court Documents, Codes, Rules, and Docket, doc. 84; and two Motions to Strike various responses by Defendant, docs. 85, 87. For the reasons which follow, I RECOMMEND the Court GRANT in part and DENY in part Defendant's Motion to Dismiss, DENY Plaintiff's Motion for Summary Judgment, and DISMISS Plaintiff's Complaint for his failure to allege a physical injury. I also RECOMMEND the Court DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal and DENY Plaintiff in forma pauperis status on appeal. The Court DENIES Plaintiff's remaining Motions.

         BACKGROUND

         In February of 2015, while incarcerated at D. Ray James, Plaintiff allegedly engaged in a hunger strike to protest conditions at the prison. Doc. 18 at 4-7. Plaintiff claims that various individuals and the company running the prison, GEO Group, Inc. (“GEO”), retaliated against him for engaging in the hunger strike. Id. Specifically, Plaintiff alleges Defendant Tony Normand, an employee of the Bureau of Prisons, conspired with GEO officials, including former Defendants Tracy Johns and Brick Tripp, the wardens of D. Ray James and Rivers Correctional Institution (“Rivers CI”), respectively, to obstruct and destroy his mail, deprive him of access to grievance procedures, and transfer him to Rivers CI as punishment for his hunger strike. Id.

         Plaintiff filed this action on November 21, 2016, in the United States District Court for the Eastern District of North Carolina. Doc. 1. In his initial Complaint, Plaintiff asserted various Bivens claims and a claim under the Federal Tort Claims Act (“FTCA”) against GEO, Tracy Johns, Brick Tripp, and Tony Normand.[1] Id. at 1. At that time, Plaintiff was still incarcerated at Rivers CI, a private prison operated by GEO, located in Winton, North Carolina.[2] Id.

         The District Court for the Eastern District of North Carolina granted Plaintiff in forma pauperis status and granted Plaintiff leave to amend his complaint. Docs. 5, 17. Plaintiff amended his complaint, removed his FTCA claim, and reiterated the above-described allegations. Docs. 18, 19. Following a mandatory frivolity review of Plaintiff's complaint, the court dismissed GEO because it is a private corporation and is, therefore, exempt from suit under Bivens.[3] Doc. 20. On August 7, 2017, Tracy Johns and Brick Tripp filed their answers, as well as a motion for judgment on the pleadings, arguing that, as employees of GEO, their actions are not subject to liability under Bivens. Docs. 29, 30. On September 11, 2017, Tony Normand filed a motion to dismiss, asserting that Plaintiff failed to exhaust his administrative remedies prior to filing his claim and that venue in the Eastern District of North Carolina was improper. Docs. 36, 37, 38. Plaintiff filed responses to Defendants' motions and his own motions seeking to prevent the Department of Justice from representing Defendant Normand and to have Defendants Normand, Brick, and Tripp “Divest Themselves of All Interest” in GEO. Docs. 42, 48.

         On February 2, 2018, the Honorable Terrence W. Boyle of the Eastern District of North Carolina issued an order addressing all then-pending motions. Doc. 54. Judge Boyle granted Defendants Johns and Tripp's motion for judgment on the pleadings. The District Court relied on clear precedent from the United States Supreme Court declining to extend liability under Bivens to private prisons or their employees. Id. at 3-4 (citing Minneci v. Pollard, 565 U.S. 118, 130 (2012), and Corr. Services Corp. v. Malesko, 534 U.S. 61 (2001)). Judge Boyle then found that the Southern District of Georgia was a more convenient forum for the case and granted Defendant Normand's motion to the extent he requested a transfer but denied the remainder of the motion without prejudice. Id. at 5. Finally, Judge Boyle denied the remainder of Plaintiff's motions as having no basis in law. Id. at 6. Thus, after Judge Boyle's rulings and the transfer to this Court, only Plaintiff's Bivens claim against Defendant Normand remained pending.

         Defendant Normand has now filed a Motion to Dismiss, arguing for dismissal on three grounds: (1) insufficient process and service of process; (2) failure to exhaust administrative remedies; and (3) failure to allege a physical injury. Doc. 65-1. Plaintiff filed a Motion for “Emergency Summary Judgment” against Defendant Normand, citing his status as an Australian citizen and a deportation order as a reason for urgency. Doc. 62. The parties have filed numerous responses and briefs regarding the Motion to Dismiss and Motion for Summary Judgment, and Defendant Normand has filed an answer. Docs. 67, 72, 76, 77, 78, 86. Plaintiff has additionally filed the following motions: Motion to Consider Facts in the Interest of Justice, doc. 82; Motion for Court Documents, Codes, Rules, and Docket, doc. 84; Motion to Strike Defendant's Answer, doc. 85; and Motion to Strike Defendant's Surreply to Defendant's Motion to Dismiss, doc. 87. The issues presented in the parties' various motions are now fully briefed and ripe for adjudication.

         DISCUSSION

         Defendant Normand moves for dismissal of Plaintiff's claims, and Plaintiff moves for summary judgment in his favor. As set forth below, I agree that Plaintiff fails to allege a physical injury, as required under 42 U.S.C. § 1997e(e), and RECOMMEND the Court GRANT Defendant's Motion to Dismiss on this basis. I also RECOMMEND the Court DENY Plaintiff's Motion for Summary Judgment. The Court DENIES Plaintiff's numerous other pending motions.

         The Court addresses each of Plaintiff's non-dispositive motions before evaluating Defendant's Motion to Dismiss and Plaintiff's Motion for Summary Judgment.

         I. Plaintiff's Motion to Strike Defendant's Answer (Doc. 85)

         Defendant Normand responded to Plaintiff's Complaint on September 11, 2017, by filing a motion to dismiss in lieu of answering. Doc. 36. On February 1, 2018, Judge Boyle granted Normand's motion in part, transferring the case to this District, but denying the motion without prejudice as to the remainder of the motion. Doc. 54. New counsel for Normand appeared in this Court on February 20, 2018, soon after the transfer. Doc. 59. However, no further response was filed by Normand until he filed his second Motion to Dismiss on April 13, 2018. Doc. 65. While that second Motion to Dismiss was pending, Normand filed his Answer on April 24, 2018. Doc. 72.

         Plaintiff now moves the Court to strike Defendant's Answer, arguing that Defendant's Answer was untimely and an attempt to “sneak-in an original pleading.” Doc. 85. Defendant responds that his Answer is not untimely because he was not required to file any answer, given his pending motion to dismiss, and that his Answer was simply filed “out of an abundance of caution.” Doc. 88 at 1.

         To resolve Plaintiff's Motion to Strike, it is necessary to evaluate Normand's obligations to respond to Plaintiff's Complaint and the timing of those obligations. Under Federal Rule of Civil Procedure 12(b), a defendant must raise certain defenses to a complaint by motion before answering the complaint, which is what Normand did when he filed his initial motion to dismiss. Because Normand moved to dismiss Plaintiff's claim under Rule 12(b), his time to answer Plaintiff's complaint was set by Rule 12(a)(4), which states:

         Unless the court sets a different time, serving a motion under this rule alters these periods as follows:

(A) if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 14 days after notice of the court's action; or
(B) if the court grants a motion for a more definite statement, the responsive pleading must be served within 14 days after the more definite statement is served.

         Fed. R. Civ. P. 12(a)(4). Therefore, Normand was not required to file an answer until his initial motion to dismiss was resolved.

         Judge Boyle's February 1, 2018 order granted Normand's initial motion to dismiss to the extent it requested transfer to this District but denied the remainder motion without prejudice. Doc. 54 at 6. Thus, under Rule 12(a)(4), Normand was required to file a responsive pleading within 14 days of Judge Boyle's ruling, or by February 15, 2018. Normand did not file his second motion to dismiss until April 13, 2018, and did not file his answer until April 24, 2018. Therefore, from February 15, 2018, to April 13, 2018, Normand had not filed a timely responsive pleading. Normand's status during this period-be it in default or otherwise-is unclear.[4] Regardless, once Normand filed his second Motion to Dismiss on April 13, 2018, under Rule 12(a)(4), he had no obligation to answer the Complaint until the Court ruled on the second Motion to Dismiss. Because he had no obligation to answer the Complaint once he filed his second Motion to Dismiss, Normand's Answer cannot be deemed untimely. Additionally, no rule prohibits a party from filing an answer while a Rule 12(b) motion is pending, so Normand's answer cannot be deemed an improper attempt to “sneak-in an original pleading, ” as Plaintiff contends. Plaintiff has not asserted any basis for the Court to strike Normand's Answer, and, therefore, the Court DENIES Plaintiff's Motion to Strike Defendant's New Answer.

         II. Plaintiff's Motion to Strike Defendant's Reply (Doc. 87)

         Four briefs have been filed pertaining to Normand's second Motion to Dismiss: (1) Normand's opening brief, doc. 65-1; (2) Plaintiff's Response, doc. 67; (3) Normand's Reply, doc. 78; and (4) Plaintiff's “Motion to Oppose & Strike Defendants Opposition (DOC.78 etc.) to Motion to Dismiss Plaintiffs Complaint, ” [sic], doc. 87. In Plaintiff's final brief, doc. 87, he moves to strike Defendant Normand's reply ...


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