United States District Court, S.D. Georgia, Waycross Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE
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.
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.
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. Id. at 1. At that time,
Plaintiff was still incarcerated at Rivers CI, a private
prison operated by GEO, located in Winton, North
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. 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.
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.
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
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.
Court addresses each of Plaintiff's non-dispositive
motions before evaluating Defendant's Motion to Dismiss
and Plaintiff's Motion for Summary Judgment.
Plaintiff's Motion to Strike Defendant's Answer (Doc.
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.
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.
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:
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.
Civ. P. 12(a)(4). Therefore, Normand was not required to file
an answer until his initial motion to dismiss was resolved.
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. 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.
Plaintiff's Motion to Strike Defendant's Reply (Doc.
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 ...