United States District Court, S.D. Georgia, Savannah Division
DANIEL L. WILLIAMS, Plaintiff,
WARDEN JOSE MORALES; GOVERNOR NATHAN DEAL; DAVID MILTON; and NURSE BURKE, Defendants.
STAN BAKER UNITED STATES DISTRICT JUDGE
careful de novo review of the entire record, the
Court concurs with the Magistrate Judge's January 10,
2019 Report and Recommendation, (doc. 25), to which Plaintiff
filed Objections, (doc. 28). For the reasons set forth below,
the Court OVERRULES Plaintiff's
Objections and ADOPTS the Report and
Recommendation as the opinion of the Court. The Court
GRANTS Plaintiff's Motion to Amend his
Complaint. (Doc. 29.) However, those amendments do not remedy
the fatal deficiencies in Plaintiff's Complaint noted by
the Magistrate Judge. Consequently, the Court
DISMISSES WITHOUT PREJUDICE Plaintiff's
Complaint. The Court also DENIES
Plaintiff's request to appoint counsel. Finally, the
Court DIRECTS the Clerk of Court to
CLOSE this case.
Magistrate Judge recommended dismissal because Williams has
alleged, at most, medical negligence. Negligence, however -
even gross negligence - does not suffice to state a claim
under 42 U.S.C. § 1983. (Doc. 25 at 5 (explaining that a
one-week delays in radiological imaging of an
‘apparently benign' injury and “bad medical
advice do[ ] not a constitutional claim make” under
Motion to Amend, Plaintiff seeks to name additional
Defendants in his Complaint. (Doc. 29.) Under Federal Rule of
Civil Procedure 15(a), a party may amend a complaint
“once as a matter of course at any time before a
responsive pleading is served.” The Eleventh Circuit
has made clear that the Prison Litigation Reform Act
(“PLRA”) does not change this right to amend.
Brown v. Johnson, 387 F.3d 1344, 1349 (11th Cir.
2004) (“We agree with the majority of circuits that the
PLRA does not preclude the district court from granting a
motion to amend. Nothing in the language of the PLRA repeals
Rule 15(a). Because [plaintiff] filed his motion to amend
before the district court dismissed his complaint and before
any responsive pleadings were filed, [plaintiff] had the
right to amend his complaint under Rule 15(a).”).
Accordingly, the fact that the Court has already conducted a
frivolity review of Plaintiff's Complaint and issued a
Report and Recommendation does not alter Plaintiff's
ability to amend. Id. However, Plaintiff has already
amended his Complaint with leave of the Court. (Doc. 21.)
Therefore, he does not have a right to amend. Nonetheless,
the Court will consider Plaintiff's proposed amendment in
his recent Motion. However, having done so, the Court does
not find that the addition of the additional defendants named
in the Motion to Amend does not alter the analysis of the
Objections, Williams explains that Nurse Burke, and others,
failed to meet their “duty of care” as providers
(as defined by, perhaps, the medical community or state
practice guidelines). (Doc. 28 at 4.) But he misapprehends
the R&R. Even if providers were negligent in
their provision of “bad medical advice, ” that
would not be enough. There is no federal medical
malpractice claim. Williams can, and necessarily must, bring
any state law claims for medical malpractice and negligence
in state court. (See Id. at 6.) This Court
is simply the wrong forum for the relief he seeks, and the
Court's sympathy for his serious spinal condition cannot
invoke its jurisdiction. His request to amend his Complaint
and compel discovery in furtherance of that request (doc. 29)
does not cure this deficiency. In other words, allowing
Plaintiff to amend his Complaint would be futile as Plaintiff
does not explain how he would remedy the deficiencies in his
Complaint noted by the Magistrate Judge., and thus must be
also asks the Court to appoint counsel to assist him with
this case. (Doc. 28 at 5 & 29 at 2.) In this civil case,
however, plaintiff has no constitutional right to the
appointment of counsel. Wright v. Langford, 562
Fed.Appx. 769, 777 (11th Cir. 2014) (citing Bass v.
Perrin, 170 F.3d 1312, 1320 (11th Cir. 1999)).
“Although a court may, pursuant to 28 U.S.C. §
1915(e)(1), appoint counsel for an indigent plaintiff, it has
broad discretion in making this decision, and should appoint
counsel only in exceptional circumstances.”
Wright, 562 Fed.Appx. at 777 (citing Bass,
170 F.3d at 1320). Appointment of counsel in a civil case is
a “privilege that is justified only by exceptional
circumstances, such as where the facts and legal issues are
so novel or complex as to require the assistance of a trained
practitioner.” Fowler v. Jones, 899 F.2d 1088,
1096 (11th Cir. 1990) (citing Poole v. Lambert, 819
F.2d 1025, 1028 (11th Cir. 1987), and Wahl v.
McIver, 773 F.2d 1169, 1174 (11th Cir. 1985)).
Eleventh Circuit has explained that “the key” to
assessing whether counsel should be appointed “is
whether the pro se litigant needs help in presenting the
essential merits of his or her position to the court. Where
the facts and issues are simple, he or she usually will not
need such help.” McDaniels v. Lee, 405
Fed.Appx. 456, 457 (11th Cir. 2010) (quoting Kilgo v.
Ricks, 983 F.2d 189, 193 (11th Cir. 1993)). A review of
the record and pleadings in this case reveals no such
“exceptional circumstances” warranting the
appointment of counsel.
plaintiff is incarcerated, this Court has repeatedly found
that “prisoners do not receive special consideration
notwithstanding the challenges of litigating a case while
incarcerated.” Hampton v. Peeples, 2015 WL
4112435 at *2 (S.D. Ga. July 7, 2015). “Indeed, the
Eleventh Circuit has consistently upheld district courts'
decisions to refuse appointment of counsel in 42 U.S.C.
§ 1983 actions similar to this case for want of
exceptional circumstances.” Id. (citing
Smith v. Warden, Hardee Corr. Inst., 597 Fed.Appx.
1027, 1030 (11th Cir. 2015); Wright, 562 Fed.Appx.
at 777; Faulkner v. Monroe Cty. Sheriffs Dep't,
523 Fed.Appx. 696, 702 (11th Cir. 2013); McDaniels,
405 Fed.Appx. at 457; Sims v. Nguyen, 403 Fed.Appx.
410, 414 (11th Cir. 2010); Fowler, 899 F.2d at 1091,
1096; Wahl, 773 F.2d at 1174). This case is not so
complex, legally or factually, as to prevent plaintiff from
presenting “the essential merits of his position”
to the Court. His request for appointment of counsel is