United States District Court, S.D. Georgia, Augusta Division
HALL, CHIEF JUDGE.
careful, de novo review of the file, the Court
concurs with the Magistrate Judge's Report and
Recommendation ("R&R"), to which objections
have been filed. (Doc. no. 25.) Although nothing in
Plaintiffs objections undermines the Magistrate Judge's
recommendation, the Court will briefly address his arguments.
argues he provided enough facts to support a claim against
Defendants and then partially restates the allegations in his
amended complaint. (Doc. no. 25, pp. 1-8.) However, like his
amended complaint, Plaintiffs objections fail to show what
facts support a claim and how the Magistrate Judge overlooked
or did not consider those facts. His restatement of some of
his claims exemplifies how he has alleged nothing more than
labels and conclusions stating he was harmed. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(discussing requirements to state claim). Plaintiff cannot
simply state there is a conspiracy, cite the same form
language for every Defendant, and allege Defendants harmed
him. Id. Plaintiff also argues the Magistrate Judge
improperly found Plaintiffs second motion to amend, filed
along with his amended complaint, moot. However, as stated in
the R&R, Plaintiffs second motion to amend was moot
because the Magistrate Judge already granted the leave to
amend and a separate motion to amend did not need to be
attached to his amended complaint to consider it. Thus, the
placeholder motion to amend attached to his amended complaint
was properly found moot.
Plaintiff argues the Magistrate Judge improperly denied
appointment of counsel in the December 11, 2018 Order. (Doc.
no. 25, pp. 8-9.) Plaintiff also objected to the denial of
counsel in his objection to the Magistrate Judge's
previously vacated R&R. (Doc. no. 14, p. 3; see doc. nos.
10, 12.) However, Plaintiff has clearly not demonstrated any
exceptional circumstances justifying appointment of counsel.
See Dean v. Barber, 951 F.2d 1210, 1216 (11th Cir.
1992) (holding no entitlement to counsel in civil rights
cases); Smith v. Fla. Dep't of Corr., 713 F.3d
1059, 1065 (11th Cir. 2013) (finding exceptional
circumstances justified appointment of counsel where suspect
conduct of prison officials hindered prisoner plaintiffs
ability to present essential merits of case and,
additionally, where such appointment would alleviate security
concerns and help sharpen issues). Plaintiff is clearly
capable of presenting his case on his own as indicated by his
numerous filings and communication with the Court and was
properly denied counsel. Thus, there is nothing in Plaintiffs
objections that undermine the Magistrate Judge's R&R.
Plaintiff filed motions to supplement his complaint and for
default judgment in addition to his objections. (Doc. nos.
23, 24.) Turning to Plaintiffs motion to supplement his
complaint, Federal Rule of Civil Procedure 15, which governs
amendment of pleadings, provides as follows:
A party may amend its pleading once as a matter of course
within: (A) 21 days after serving it, or (B) if the pleading
is one to which a responsive pleading is required, 21 days
after service of a responsive pleading or 21 days after
service of a motion under Rule 12(b), (e), or (f), whichever
party is not entitled to amend as a matter right under Rule
15(a)(1), then "a party may amend its pleading only
with... the court's leave." Fed.R.Civ.P. 15(a)(2).
As a general rule, leave to amend under Fed.R.Civ.P. 15(a) is
given freely. Saewitz v. Lexington Ins. Co., 133
Fed.Appx. 695, 699 (11th Cir. 2005) (per curiam); Foman
v. Davis, 371 U.S. 178, 182 (1962). That said, leave to
amend is not guaranteed, and a trial court may deny such
leave "in the exercise of its inherent power to manage
the conduct of litigation before it." Reese v.
Herbert, 527 F.3d 1253, 1263 (11th Cir. 2008). "In
making this determination, a court should consider whether
there has been undue delay in filing, bad faith or dilatory
motives, prejudice to the opposing parties, and the futility
of the amendment." Saewitz. 133 Fed.Appx. at
699 (quoting Foman, 371 U.S. at 182). An amendment
is futile when the pleading that it seeks to amend would
still be subject to dismissal if the amendment were
permitted. See Coventry First. LLC v. McCarty, 605
F.3d 865, 870 (11th Cir. 2010) ("A proposed amendment
may be denied for futility 'when the complaint as amended
would still be properly dismissed.'") (quoting
Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir.
previously filed an amended complaint. Thus, Plaintiff is not
entitled to amend as a matter of right and must obtain the
Court's leave to amend his amended complaint.
Fed.R.Civ.P. 15(a)(1)(B), (2). Although leave to amend is
generally freely given, Plaintiffs amendment is futile
because it fails to state any claim against the existing
Defendants, fails to state a claim against any new
Defendants, and does not fix any of the deficiencies pointed
out in the Magistrate's R&R.
avoid dismissal for failure to state a claim upon which
relief can be granted, the allegations in the complaint must
"state a claim for relief that is plausible on its
face." Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). "A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). That is, "[f]actual
allegations must be enough to raise a right to relief above
the speculative level." Twombly, 550 U.S. at
555. While Rule 8(a) of the Federal Rules of Civil Procedure
does not require detailed factual allegations, "it
demands more than an unadorned, the defendant
unlawfully-harmed-me accusation." Iqbal. 556
U.S. at 678. A complaint is insufficient if it "offers
'labels and conclusions' or 'a formulaic
recitation of the elements of a cause of action, '"
or if it "tenders 'naked assertions' devoid of
'further factual enhancement.'" Id.
(quoting Twombly, 550 U.S. at 555, 557). In short,
the complaint must provide a "'plain statement'
possess[ing] enough heft to 'sho[w] that the pleader is
entitled to relief" Twombly, 550 U.S. at 557
(quoting Fed.R.Civ.P. 8(a)(2)).
supplemental complaint alleges that upon arriving at Valdosta
State Prison ("VSP") in Valdosta, Georgia, he only
received "retaliation [, ] campaign of harassment[, ]
and adverse action." (Doc. no. 23, pp. 1.) He goes on to
allege an unknown staff member at VSP set up a plot to kill
him by employing an inmate at VSP, resulting in Plaintiff
being hit in the head by the unknown inmate. (Id.)
He further realleges similar allegations in his amended
complaint that there is a conspiracy to imprison him and said
conspiracy followed and awaited his arrival at VSP from
Augusta State Medical Prison in Grovetown, Georgia, which is
where the events of Plaintiff s amended complaint allegedly
occurred. (Id.: see doc. no. 17.) Finally,
Plaintiff provides an affidavit restating the plot to kill
him at VSP, asserts new allegations against an unknown
medical doctor and mental health staffer who are allegedly
involved in the plot to kill Plaintiff, and argues the
Georgia Department of Corrections violated constitutional
rights by improperly denying his request for a protection
order. (Id. at 2.)
Plaintiffs amended complaint, Plaintiffs supplemental
complaint fails to properly allege any factual basis for his
claims or how any Defendant, old or new, harmed him. The
supplemental complaint is entirely baseless and clearly fails
to state a claim. (See doc. no. 21, pp. 5-6.)
motion for default judgment is also improper because no
Defendants have been served. Federal Rule of Civil Procedure
55 contemplates two steps before entry of a default judgment.
First, the party seeking a default must have the Clerk enter
the default by submitting an "affidavit or
otherwise" showing that the defaulting party "has
failed to plead or otherwise defend." Fed.R.Civ.P.
55(a). Thereafter, the moving party may then seek entry of a
default judgment under Rule 55(b). Under Rule 55(b)(1), the
Clerk is directed to enter a default judgment upon request of
the plaintiff when all of the following conditions are
present: (1) the claim is for a sum certain, or for a sum
that can by computation be made certain, which is supported
with an affidavit showing the amount due; (2) the default is
for want of appearance; and (3) the defendant is neither an
infant nor an incompetent person. As there has been no prior
entry of default by the Clerk, by definition, Plaintiff is
not entitled to entry of default judgment under Rule 55(b).
a default judgment is available under Fed.R.Civ.P. 55 only
when a party has failed to plead or otherwise defend as
provided by the Federal Rules. However, a defendant is not
required to file a pleading or otherwise defend himself
unless and until he is properly served. Varnes v. Local
91, Glass Bottle Blowers Ass'n of the United States and
Canada, 674 F.2d 1365, 1369-70 (11th Cir. 1982)
(prohibiting entry of default on amended complaint that was
not properly served). Plaintiff argues Defendants were
properly served because he filed his complaint with the
Court. However, contrary to Plaintiffs assertion, the U.S.
Marshal has not yet served the complaint because Plaintiffs
complaint is before the Court on screening to protect
potential defendants from frivolous claims such as his. Thus,
default judgment is not appropriate.
the Court DENIES Plaintiffs motions to
supplement his complaint and for default judgment, (doc. nos.
23, 24), OVERRULES Plaintiffs objections,
ADOPTS the R&R of the Magistrate Judge
as its opinion, DENIES AS MOOT Plaintiffs
second motion to amend, (doc. no. 17-4, p. 1),
DENIES Plaintiffs motion for emergency
protective order, (doc. no. 9), DISMISSES