United States District Court, S.D. Georgia, Waycross Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE.
brought this 42 U.S.C. § 1983 action while incarcerated
at Ware State Prison in Waycross, Georgia, to challenge
certain conditions of his confinement. 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. 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.
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
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
early hours of June 6, 2018, Defendant Pratt returned to K-1
to provide Plaintiff with copies of two disciplinary reports
issued against him. 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.
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.
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.
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.
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).
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.
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)).
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
Plaintiff's Motion for Leave to file an Amended
Complaint, doc. 28
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.
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.
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.
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).
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).
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
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.
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 futility” and concluding that the