United States District Court, M.D. Georgia, Columbus Division
ORDER AND REPORT AND RECOMMENDATION
STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE
before the Court is Plaintiff's motions for leave to
amend his complaint (ECF Nos. 20, 23) and appointment of
counsel (ECF Nos. 19, 24). Also pending is Defendant
Thompson's motion to dismiss Plaintiff's complaint
(ECF No. 15). For the reasons explained below,
Plaintiff's motion seeking to add Nurse Bennett as a
defendant and claims for injunctive relief is granted, and
his motions for appointment of counsel are denied. It is
recommended that Plaintiff's motion to amend his
complaint by dropping Defendant Thompson be granted,
Plaintiff's claims for injunctive relief be dismissed,
and Defendant Thompson's motion to dismiss terminated as
seeks relief under 42 U.S.C § 1983, alleging Defendants
were deliberately indifferent to his serious medical needs in
violation of his Eighth Amendment rights. Plaintiff's
complaint stems from an incident occurring on May 21, 2017,
while he was an inmate at Rutledge State Prison
(“RSP”). On that date, Plaintiff alleges he
“swallowed 18 razors, ” and Defendants failed to
respond appropriately to his medical condition. Compl. 5, ECF
No. 1. After preliminary review, the Court allowed
Plaintiff's claims to proceed. Order 9, Nov. 15, 2018,
ECF No. 7.
January 28, 2019, Defendants Vaughn and Thornton answered,
and Defendant Thompson moved to dismiss Plaintiff's
complaint (ECF Nos. 16, 15). On February 15, 2019, Plaintiff
moved for appointment of counsel and filed a motion to amend
his complaint (ECF Nos. 19, 20). However, Plaintiff's
motion to amend his complaint was not signed as required by
Rule 11 of the Federal Rules of Civil Procedure, so the Clerk
notified him of the deficiency. Plaintiff filed a signature
page (ECF No. 23) on March 8, 2019, which the Court construed
as responsive to the Court's directive, and it deemed his
motion to amend filed as of that date. Text-Only Order, Mar.
20, 2019, ECF No. 25. On the same day, Plaintiff again moved
for appointment of counsel (ECF No. 24). On March 29, 2019,
in response to an order from the Court, Plaintiff clarified
that his motions to amend sought to add Nurse Bennett as a
defendant to the lawsuit and drop Defendant Thompson.
Pl.'s Resp. to Court Order, ECF No. 29. These motions are
ripe for review.
Motions to Amend Complaint
moves to amend his complaint by dropping Defendant Thompson
as a party, adding “Nurse Bennett” as a
defendant, and adding claims for injunctive relief. Mot. to
Amend Compl. Attach. 3, at 2, 5, 7, ECF No. 20-3; Pl.'s
Resp. to Court Order. The Court will first address Defendant
Thompson and then the motions to add Nurse Bennett and claims
for injunctive relief.
seeks to amend his complaint by dropping Defendant Thompson
from this lawsuit. In response to Plaintiff's motion,
Defendant Thompson asked the Court to deny it, or, in the
alternative, dismiss the claims against him. Def.
Thompson's Resp. to Mot. to Amend 3, ECF No. 26.
Defendant Thompson referred to a supplemental brief he
previously filed in support of his motion to dismiss.
Id. at 3. Attached to that brief was a letter signed
by Plaintiff indicating he wished to voluntarily dismiss
Defendant Thompson. Def. Thompson Suppl. Br. in Supp. of Mot.
to Dismiss 1-2, ECF No. 18; Def. Thompson Suppl. Br. in Supp.
of Mot. to Dismiss Attach. 1, ECF No. 18-1. Subsequent to
Defendant Thompson's response, Plaintiff responded to a
Court inquiry by clarifying that his motion to amend sought
to drop Defendant Thompson from the lawsuit. Pl.'s Resp.
to Court Order. In light of this clarification, it is
recommended that Plaintiff's request to drop Defendant
Thompson be granted and Defendant Thompson dismissed from
this action. Fed.R.Civ.P. 21.
Nurse Bennet and Claims for Injunctive Relief
is entitled to amend his complaint to add Nurse Bennett and
seek injunctive relief without seeking leave of the Court.
Plaintiff filed his motion to amend on February 15, 2019.
Pl.'s Mot. to Amend 1, ECF No. 20. This was within 21
days of Defendants' Vaughn and Thornton's answer and
Defendant Thompson's motion to dismiss, and thus within
the time period where Plaintiff could amend his complaint as
a matter of right. Fed.R.Civ.P. 15(a)(1)(B). However, as
Plaintiff's motion to amend was not signed as required by
Rule 11, the Clerk sent a notice of deficiency to Plaintiff,
instructing him of the need to sign his motion. On March 8,
2019, Plaintiff provided the required signature. Suppl. to
Mot. to Amend Compl., ECF No. 23.
Supreme Court has held that where a pro se litigant
fails to satisfy Rule 11's signature requirement, he may
promptly cure the defect such that the signed document
relates back to the date of the original filing. Becker
v. Montgomery, 532 U.S. 757, 760 (2001). The Court noted
this was consistent with Rule 11's provision that the
omission of a signature could be corrected promptly after
being called to the attention of the party. Id. at
764 (citing Fed.R.Civ.P. 11(a)). Other courts have cited
Becker to allow such relation-back. See, e.g.,
Birch v. Thompson, 224 Fed.Appx. 705, 706 (9th Cir.
2007) (finding habeas petition timely filed because signed
petition related back to the originally filed unsigned
Plaintiff filed an unsigned motion to amend within 21 days of
the Defendants' responsive pleadings and then promptly
corrected the omission of his signature when it was called to
his attention. Although the Court issued an order deeming
Plaintiff's amended complaint filed as of March 8, 2019,
that order was not intended to foreclose Plaintiff's
right to amend his complaint as of right or to promptly
correct the signature omission as allowed by Rule 11. To
avoid confusion, therefore, the Court amends its order of
March 20, 2019 (ECF No. 20) to reflect that Plaintiff's
motion to ...