Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Curry v. Sellars

United States District Court, M.D. Georgia, Macon Division

September 26, 2019

JARMOND CURRY, et al., Plaintiffs,
v.
Warden ERIC SELLERS, et al., Defendants.

          ORDER

          MARC T. TREADWELL, JUDGE.

         On September 6, 2019, nine cases[1] challenging the conditions of confinement at the Special Management Unit (“SMU”) at Georgia Diagnostic and Classification Prison (“GDCP”) were consolidated pursuant to Rule 42(a) of the Federal Rules of Civil Procedure. See Curry v. Sellers (5:17-cv-424), Doc. 31. Pursuant to the consolidation order, Curry v. Sellers was designated as the lead case, with all other cases designated as member cases. Id.

         The following thirteen motions are currently pending in this action: Plaintiff Rodriguez’s (1) motion for reconsideration of the order vacating an entry of default (id., Doc. 32), (2) motion for joinder, class certification, and appointment of class counsel (id., Doc. 33), (3) motion for a preliminary injunction and temporary restraining order (“TRO”) (id., Doc. 34), and (4) motion to amend the complaint (id., Doc. 35); Plaintiff McCoy’s (5) motion to amend the complaint (id., Doc. 36); Plaintiff Coleman’s (6) motion for appointment of an expert witness (id., Doc. 37) and (7) motion for a physical and mental examination (id., Doc. 38); Plaintiff Brooks’s (8) motion to amend the complaint (id., Doc. 39), (9) motion for a “liberty deprivation hearing” (id., Doc. 40), and (10) motion for leave to interview witnesses (id., Doc. 41); Plaintiff Emberson’s (11) motion to appoint counsel (id., Doc. 45) and (12) renewed motion to appoint counsel (id., Doc. 51); and Plaintiff Diaz’s (13) motion to appoint counsel (id., Doc. 46).

         For the reasons set forth below, all the above-listed motions are DENIED, except Plaintiff Brooks’s motion to amend (id., Doc. 39), which is GRANTED.

         A. Motion for Reconsideration

         Plaintiff Rodriguez has moved-for the second time-for reconsideration[2] of the order vacating entry of default against Defendant Burnside in Rodriguez v. Chatman (5:15-cv-2). Curry, Doc. 32. Shortly preceding Plaintiff’s motion, Plaintiff Rodriguez’s sole claim against Defendant Burnside-a claim for deliberate indifference to serious medical need, in violation of the Eighth Amendment-was severed from Rodriguez v. Chatman (5:15-cv-2) and entered in the new case of Rodriguez v. Powell (5:17-cv-387). See Chatman (5:15-cv-2), Doc. 185. Plaintiff’s claim against Defendant Burnside has since been resolved at the trial level[3] and is now awaiting decision on appeal. Powell (5:17-cv-387), Docs. 318, 319.

         Plaintiff’s motion for reconsideration must be denied. Entry of Default against Defendant Burnside was vacated upon good cause shown and because the circumstances were not so “extreme” as to warrant the drastic remedy of judgment by default. See Rodriguez v. Chatman (5:15-cv-2), Doc. 118. On reconsideration pursuant to 28 U.S.C. § 636(b)(1)(A), the order vacating entry of default was found to be not “clearly erroneous or . . . contrary to law.” Id., Doc. 183. Since Plaintiff’s instant motion for reconsideration offers nothing to contradict that conclusion, focusing instead on an alternative ground on which the original motion for reconsideration was denied, [4] the motion is DENIED.

         B. Motion for Joinder, Class Certification, and Appointment of Class Counsel

         Plaintiff Rodriguez has filed a motion for joinder, class action certification, and appointment of class counsel. Curry, Doc. 33. In Gumm v. Jacobs (5:15-cv-41), the Court certified a class of all persons who are or in the future will be assigned to either the SMU or the Tier III Program. Gumm, Doc. 256 at 28. The Court also approved a class action settlement agreement resolving all claims for injunctive and declaratory relief. Id. In light of the class action settlement agreement in Gumm, Plaintiff’s motion is DENIED as moot.

         C. Motion for Preliminary Injunction and Temporary Restraining Order

         Plaintiff Rodriguez has filed a motion for a preliminary injunction and TRO, requesting that Defendant Powell and “his Agents” be ordered to provide Plaintiff Rodriguez and all other inmates at GDCP with one hour per day of out-of-cell recreation time, as required by “State Regulations, Rules and Policies.” Curry, Doc. 34. According to Plaintiff, since February 27, 2018, while he was incarcerated in GDCP, he had been denied all out-of-cell recreation, in violation of his due process and Eighth Amendment rights. Id. at 4–8, 12–13. Because Plaintiff has since been transferred from GDCP, and pursuant to the class action settlement agreement in Gumm, his motion for injunctive relief and a TRO is DENIED as moot. See Smith v. Allen, 502 F.3d 1255, 1267 (11th Cir. 2007) (“The general rule in our circuit is that a transfer or a release of a prisoner from prison will moot that prisoner’s claims for injunctive and declaratory relief.”), abrogated on other grounds by Sossamon v. Texas, 563 U.S. 277 (2011).

         D. Motions to Amend

         Plaintiffs Rodriguez, McCoy, and Brooks have filed motions to amend their respective complaints. Curry, Docs. 35, 36, 39. Rule 15 of the Federal Rules of Civil Procedure governs when amendment to a pleading is appropriate:

“A party may amend its pleading once as a matter of course within . . . (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.”

Fed. R. Civ. P. 15(a)(1). “In all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s leave, ” which should freely be given when justice so requires. Id. 15(a)(2). A district court has discretion to deny a proposed amendment “(1) where there has been undue delay, bad faith, dilatory motive, or repeated failure to cure deficiencies by amendments previously allowed; (2) where allowing amendment would cause undue prejudice to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.