United States District Court, M.D. Georgia, Macon Division
ORDER AND REPORT AND RECOMMENDATION
STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE
before the Court are Plaintiff's motions for class
certification (ECF No. 67), appointment of counsel (ECF No.
79), leave to interview potential witnesses (ECF No. 80), and
leave to amend his complaint (ECF No. 84). For the reasons
explained below, it is recommended that his motion for class
certification be denied. Plaintiff's motions for
appointment of counsel and leave to interview potential
witnesses are denied. His motion to amend is granted in part
and denied in part.
October 28, 2016, Plaintiff filed a complaint under 42 U.S.C
§ 1983, alleging Defendants violated his procedural due
process rights by confining him in the Special Management
Unit (“SMU”) at the Georgia Diagnostic and
Classification Prison (“GDCP”). Compl. 6, ECF No.
1. On April 14, 2017, Defendants moved to dismiss
Plaintiff's claims. Mot. to Dismiss 1, ECF No. 20.
Plaintiff did not file a response to Defendants' motion,
but instead filed an amended complaint that added claims for
excessive force, deliberate indifference to medical needs,
and violation of his due process rights relating to a 2012
prison riot. Am. Compl. 7-10, ECF No. 24. Plaintiff also
added a federal deliberate indifference to medical needs
claim, a state law tort claim relating to a slip and fall
incident, Religious Land Use and Institutionalized Persons
Act (“RLUIPA”) claims, and access to court
claims. Id. at 13-19. The Court allowed
Plaintiff's procedural due process claims arising after
October 28, 2014, against Defendants Bruce Chatman, June
Bishop, William Powell, William McMillian, Rufus Logan,
Rodney McCloud, Michael Cannon, Caldwell, Betty Dean, Homer
Bryson, Victor Walker, Timothy Ward, and Rick Jacobs to
proceed. Order 11, Nov. 14, 2017, ECF No. 60. All
Plaintiff's other claims were dismissed. Id.
Plaintiff now seeks class certification of similarly situated
inmates in the GDCP SMU (ECF No. 67), appointment of counsel
(ECF No. 79), leave to interview witnesses (ECF No. 80), and
leave to amend his complaint (ECF No. 84). These motions are
ripe for review.
Motion for Class Certification
moves for class certification of claims by similarly situated
inmates held in the SMU at GDCP. Mot. for Class Certification
1, ECF No. 67. His proposed class would include various
plaintiffs who have already filed suit in the Federal
District Court for the Middle District of Georgia as well as
other known and unknown prisoners confined in the SMU.
Id. at 1-2, 4.
recommended that Plaintiff's motion be denied. A pro
se Plaintiff may not bring a class action on behalf of
other prisoners. Smith v. Hill, No.
5:16-CV-333-MTT-CHW, 2016 WL 4414788, at *1 (M.D. Ga. Aug.
18, 2016). Moreover, one of the other similarly situated SMU
prisoners identified by Plaintiff, Timothy Gumm, has already
been appointed counsel in his action, and that counsel filed
for class certification. Pls.' Am. Mot. to Certify Class
at 1, Gumm v. Sellers, No. 5:15-cv-41-MTT-CHW (M.D.
Ga. July 13, 2018). Preliminary approval of a class action
settlement has been granted and a fairness hearing scheduled.
Gumm v. Ford, No. 5:15-cv-41-MTT-CHW, 2019 WL
479506, at *8-9 (M.D. Ga. Jan. 17, 2019). Certification of a
class action in this case, therefore, would be duplicative.
Motion for Appointment of Counsel
second time, Plaintiff requests appointed counsel. 2nd Mot.
to Appoint Couns. 2, ECF No. 79. Plaintiff's first
request (ECF No. 25) was denied. Order & R. & R.
16-17, ECF No. 29. As previously explained, under 28 U.S.C.
§ 1915(e)(1), the district court “may request an
attorney to represent any person unable to afford
counsel.” There is, however, “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). Appointment of
counsel is a privilege that is justified only by exceptional
circumstances. Lopez v. Reyes, 692 F.2d 15, 17 (5th
Cir. 1982). In deciding whether legal counsel should be
provided, the court considers, among other factors, the
merits of Plaintiff's claim and the complexity of the
issues presented. Holt v. Ford, 862 F.2d 850, 853
(11th Cir. 1989). Plaintiff has failed to present any
extraordinary circumstances which would justify the
appointment of counsel in this case and has filed pleadings
and motions setting out his contentions such as to allow
review by this Court. Plaintiff's request for
court-appointed counsel is denied.
Motion to Interview Witnesses
also seeks a court order compelling Defendants to allow him
to interview several inmates he contends are within their
custody and control. Mot. to Interview Witnesses 1, ECF No.
80. Plaintiff asserts these inmates are material witnesses
due to their knowledge of conditions in the SMU. Id.
at 2-3. The Plaintiff's motion is denied as moot.
Discovery may be taken in accordance with the Federal Rules
of Civil Procedure. No. further court order is required
before the parties may conduct discovery.
Motion to Amend Complaint
Plaintiff seeks leave to amend his complaint to add various
new defendants and claims. As Plaintiff previously amended
his complaint (ECF No. 24), any further amendment requires
written consent of the opposing party or the Court's
leave. Fed.R.Civ.P. 15(a). Defendants oppose Plaintiff's
motion (ECF No. 86), and so Plaintiff must obtain leave of
the Court. The Court should freely grant leave to amend when
justice so requires. Fed.R.Civ.P. 15(a)(2). However, the
Court may deny leave to amend “(1) where there has been
undue delay, bad faith, dilatory motive, or repeated failure
to cure deficiencies by amendments previously allowed; (2)