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Richards v. Johnson

United States District Court, S.D. Georgia, Waycross Division

July 8, 2019

GEORGE RICHARDS, Plaintiff,
v.
EDWINA JOHNSON; WARDEN JAMES DEAL; and ROYCE PRATT, individually and in their official capacities, Defendants.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE.

         Plaintiff brought this 42 U.S.C. § 1983 action while incarcerated at Ware State Prison in Waycross, Georgia, to challenge certain conditions of his confinement.[1] Doc. 1. Plaintiff also filed a Motion for Leave to File an Amended Complaint, doc. 28, and a Motion for a Preliminary Injunction, doc. 25, which are currently before the Court. For the reasons stated below, the Court GRANTS Plaintiff's Motion to Amend, doc. 28.[2] I RECOMMEND the Court DENY as moot Plaintiff's Motion for a Preliminary Injunction, doc. 25. Additionally, I RECOMMEND the Court DISMISS without prejudice Plaintiff's claims against Defendants Johnson, Deal, and Pratt. However, I FIND that Plaintiff sets forth a non-frivolous retaliation claim against Defendant Paulk, and that claim shall proceed. Consequently, a copy of Plaintiff's Complaint and attachments, docs. 1, 1-1, a copy of his Amended Complaint and attachments, docs. 28, 28- 1, and a copy of this Order shall be served upon Defendant Paulk by the United States Marshal without prepayment of cost.

         BACKGROUND[3]

         Plaintiff filed this action on July 5, 2018. Doc. 1. Plaintiff alleges that on June 5, 2018, a prison officer allowed him to use the phone to call his sister Stephanie. Id. at 7-14. Plaintiff was still on the phone when shift change occurred at 6:30 p.m. Id. Around 8:00 p.m., Defendants Johnson and Pratt and two other officers entered the K-1 building where Plaintiff was housed. Id. Defendant Johnson “abruptly and forcibl[y] snatch[ed]” the phone away from Plaintiff. Id. At that point, “the flap” came down and smashed Plaintiff's right hand. Id. The “flap” is a cast iron box on the door, and the lid of the box (“the flap”) weighs about 20 to 30 pounds. Id. Plaintiff asked Defendant Johnson why she took the phone from him and slammed his hand in the flap. Id. Defendant Johnson replied, “I will do it again if you don't remove your hand.” Id. Plaintiff asked for medical attention because his hand was swelling, and the pain made him “a little dizzy.” Id. Prison officials did not immediately provide Plaintiff medical attention. Id.

         Later that night, Officer Little and Defendant Pratt returned to K-1. Id. Plaintiff asked Officer Little for two grievance forms and a medical form and stated he needed medical attention. Id. Defendant Pratt then approached Plaintiff's cell door and asked if Plaintiff was all right. Id. Plaintiff told Defendant Pratt that he was in “excruciating pain, ” that his hand had swollen up, and that he needed medical attention. Id. Defendant Pratt used a flashlight to examine Plaintiff's hand through the window and told Plaintiff he would call a nurse. Id. Plaintiff was taken to medical around 10:30 p.m. Id. Plaintiff told the nurse he was in pain and requested an ice pack. Id. However, the nurse informed Plaintiff that she could not give him anything until after he saw a physician. Id. Defendant Pratt and other officers escorted Plaintiff back to his cell around 10:45 p.m. Id. At that time, Officer Little provided Plaintiff ice and grievance and medical forms. Id.

         In the early hours of June 6, 2018, Defendant Pratt returned to K-1 to provide Plaintiff with copies of two disciplinary reports issued against him.[4] Id.; Doc. 1-1 at 9-10. About 20 minutes later, Defendant Pratt brought Plaintiff a witness statement form. Doc. 1 at 7-14; Doc. 1-1 at 11. Plaintiff wrote a statement contesting the officers' version of events. Doc. 1-1 at 11. Plaintiff also asked Defendant Pratt for additional witness forms because “individuals in the dorm wanted to write what they witness[ed].” Doc. 1 at 11-13. Defendant Pratt told Plaintiff he only had one copy and that the copy machine was out of paper. Id. Plaintiff alleges that Defendants issued these disciplinary reports in a “deliberate and desperate attempt to cover their error.” Id. He also contends that the timing of the disciplinary reports supports this claim as it “took five hours to write a D.R. for a[n] incident that occurred at . . . 8:00 p.m.” Id.

         Plaintiff continued to advise prison staff of the severity of the pain and that he was “denied proper medical attention for two days” and did not receive any additional medical treatment until June 7, 2018 at around 8:00 a.m. The nurse prescribed Plaintiff ibuprofen for swelling, determined that his hand was “badly bruised” but not broken or fractured, and told Plaintiff to notify medical if the swelling did not subside in a week, as nerve damage was possible. Id. at 13-14. He submitted a follow-up medical request on June 10, 2018. Id. A nurse examined Plaintiff on June 11, 2018 and provided another week of ibuprofen for pain and discomfort. Id.

         On June 6, 2018, Plaintiff wrote Defendant Deal to inform him of the incident. Id. at 13- 14; Doc. 1-1 at 6. Plaintiff also submitted a grievance form to Officer Clark that same day. Doc. 1 at 13-14; Doc. 1-1 at 6. He received a receipt for this grievance. Doc. 1 at 13-14; Doc. 1-1 at 13. In his Complaint, Plaintiff writes that he “used the prison grievance procedure available a[t] Ware State Prison to try and solve the problem.” Doc. 1 at 3-4, 15. However, Plaintiff “received no response.” Id. He did not appeal the lack of response.

         Plaintiff requests the following relief: (1) a declaratory judgment; (2) a preliminary and permanent injunction against Defendant Johnson; (3) $100, 000 in compensatory damages; (4) $100, 000 in punitive damages; (5) court costs; and (6) all other relief the Court deems just, proper, and equitable. Id. at 17-18.

         STANDARD OF REVIEW

         Plaintiff is bringing this action in forma pauperis. Under 28 U.S.C. § 1915(a)(1), the Court may authorize the filing of a civil lawsuit without the prepayment of fees if the plaintiff submits an affidavit that includes a statement of all of his assets, shows an inability to pay the filing fee, and also includes a statement of the nature of the action which shows that he is entitled to redress. Even if the plaintiff proves indigence, the Court must dismiss the action if it is frivolous, malicious, or if it fails to state a claim upon which relief may be granted. 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii). Additionally, pursuant to 28 U.S.C. § 1915A, the Court must review a complaint in which a prisoner seeks redress from a governmental entity. Upon such screening, the Court must dismiss a complaint, or any portion thereof, that is frivolous, malicious, fails to state a claim upon which relief may be granted, or which seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).

         The Court looks to the instructions for pleadings contained in the Federal Rules of Civil Procedure when reviewing a complaint on an application to proceed in forma pauperis. See Fed.R.Civ.P. 8 (“A pleading that states a claim for relief must contain [among other things] . . . a short and plain statement of the claim showing that the pleader is entitled to relief.”); Fed.R.Civ.P. 10 (requiring that claims be set forth in numbered paragraphs, each limited to a single set of circumstances). Further, a claim is frivolous under § 1915(e)(2)(B)(i) “if it is ‘without arguable merit either in law or fact.'” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002) (quoting Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001)).

         Whether a complaint fails to state a claim under § 1915(e)(2)(B)(ii) is governed by the same standard applicable to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). Thompson v. Rundle, 393 Fed.Appx. 675, 678 (11th Cir. 2010). Under that standard, this Court must determine whether the complaint contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff must assert “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not” suffice. Twombly, 550 U.S. at 555. Section 1915 also “accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.” Bilal, 251 F.3d at 1349 (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)).

         In its analysis, the Court will abide by the long-standing principle that the pleadings of unrepresented parties are held to a less stringent standard than those drafted by attorneys and, therefore, must be liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972); Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) (“Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys . . . .” (emphasis omitted) (quoting Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003))). However, Plaintiff's unrepresented status will not excuse mistakes regarding procedural rules. McNeil v. United States, 508 U.S. 106, 113 (1993) (“We have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel.”).

         DISCUSSION

         I. Plaintiff's Motion for Leave to file an Amended Complaint, doc. 28

         On July 26, 2018, Plaintiff filed a motion requesting leave to file an amended complaint. Doc. 7. In this motion, Plaintiff sought to add “Ms. Paulk, ” an employee at Ware State Prison. Id. Plaintiff alleges that Ms. Paulk threatened him and retaliated against him for filing grievances and complaining about issues to the warden. Id.; Doc. 8. Specifically, Plaintiff alleges Ms. Paulk deprived him of his property by suspending his access to his GOAL Device (JP5) tablet for a manufactured reason, preventing him from receiving e-mail communications from his family. Doc. 8; Doc. 25. He also alleges that on June 6, 2018, after he e-mailed his sister requesting she call the prison to help him obtain medical treatment, his sister was “blocked” on the JP5 device. Doc. 25 at 3.

         On September 4, 2018, Plaintiff asked the Court to withdraw his request to amend and add Ms. Paulk as a Defendant until he could properly exhaust the prison's administrative remedies. Doc. 23. The Court granted Plaintiff's request and terminated his motion to amend, doc. 7. Doc. 24.

         On March 11, 2019, Plaintiff resubmitted his Motion for Leave to file an Amended Complaint. Doc. 28. The Motion is substantively identical to his July 26, 2018 motion. Compare Doc. 7 with Doc. 28. Plaintiff still seeks to add Ms. Paulk as a Defendant to this action and claims she retaliated against him. Doc. 28. Though he “had to withdraw my motion due to the lack” of exhaustion, he is resubmitting it now. Doc. 28-1.

         Litigants may amend a complaint without leave of court “once as a matter of course” under Rule 15(a)(1) of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 15(a)(1). A pro se prisoner retains the right to amend as a matter of course “so long as no responsive pleading has been filed.” Toenniges v. Ga. Dep't of Corr., 502 Fed.Appx. 888, 889 (11th Cir. 2012). Once a party files an amendment as a matter of course or the time to amend as a matter of course expires, parties may only amend by obtaining written consent of the other party or by filing a motion requesting court permission to do so. Fed.R.Civ.P. 15(a)(2).

         Sometimes, however, litigants will request leave to amend from the Court while that litigant is still able to amend as a matter of course. While a represented party “waives his right to amend his complaint as a matter of course when . . . counsel files an unnecessary motion for leave to amend, ” pro se litigants retain the right to amend as a matter of course even when leave of court is improperly requested. Hoke v. Lyle, 716 Fed.Appx. 930, 931 (11th Cir. 2018) (“[A] pro se plaintiff (unlike a counseled party) does not waive his right to amend as a matter of course by seeking the court's leave to amend.”); Toenniges, 502 Fed.Appx. at 889; Dollar v. Coweta Cty. Sheriff Office, 446 Fed.Appx. 248, 249 n.1 (11th Cir. 2011); Brown v. Johnson, 387 F.3d 1344, 1348-49 (11th Cir. 2004).

         Because Plaintiff's Complaint has not yet been served on any Defendant and no Defendant has filed a responsive pleading, Plaintiff retains the right to amend his Complaint once as a matter of course without permission from the Court. Toenniges, 502 Fed.Appx. at 890; Oliver v. Fuhrman, 695 Fed.Appx. 436, 439 (11th Cir. 2017); see also Fed.R.Civ.P. 15(a)(1). However, within the time permitted to amend as a matter of course, Plaintiff submitted a motion to amend, withdrew the motion, and submitted a second, substantively identical motion to amend. When Plaintiff filed his first motion to amend on July 26, 2018, he did not need Court permission to amend, nor did he waive his right to amend as a matter of course by seeking such leave.

         Importantly, amendments made as a matter of course take effect upon filing, without any intervention from the court. See Smothers v. Ditech Fin., LLC, No. 1:17-cv-4831, 2018 WL 3949715, at *1 (N.D.Ga. May 30, 2018); Moore v. Nationwide Advantage Mortg. Co., No. 1:16-cv-2757, 2016 WL 10998430, at *1 (N.D.Ga. Sept. 14, 2016); Blue Marine Shipping SA de CV v. Gulmar Offshore Middle E. LLC, No. 3:09-cv-555, 2010 WL 1687737, at *4 (N.D. Fla. Apr. 26, 2010) (noting that amendments as a matter of course “do not require a judicial imprimatur” and become the “operative complaint without judicial intervention” (quoting Connectu LLC v. Zuckerberg, 522 F.3d 82, 95-96 (1st Cir. 2008))). Thus, if Plaintiff's July 26, 2018 motion effectively amended his Complaint when filed, Plaintiff cannot again amend as a matter of course.

         The question, then, is when an amended complaint (which could have been properly filed under Rule 15(a)(1) but which was improperly filed by a pro se litigant along with a motion for leave to amend) takes effect and becomes operative. In this circumstance, case law suggests that the amended complaint does not take effect until the court takes some type of action on the pleading requesting leave. See Toenniges, 502 Fed.Appx. at 890 (noting that when a pro se plaintiff “has the right to file an amended complaint as a matter of course, the district court lacks the discretion to reject the amended complaint based on its alleged futilityā€¯ and concluding that the ...


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