Opinion
5:22-CV-413-CAR-CHW
05-19-2023
ALVIN GAMAR STANLEY, Plaintiff, v. COMMISSIONER TIMOTHY C WARD, et al., Defendants.
ORDER AND RECOMMENDATION
CHARLES H. WEIGLE UNITED STATES MAGISTRATE JUDGE
In accordance with the Court's previous orders and instructions, pro se Plaintiff Alvin Gamar Stanley, an inmate presently incarcerated at the Dooly State Prison in Unadilla, Georgia, has filed a renewed motion for leave to proceed in forma pauperis (ECF No. 24) and a Recast Complaint (ECF No. 21). Plaintiff's motion for an extension of time to file a recast complaint (ECF No. 20) is therefore DENIED as moot. Plaintiff's renewed motion for leave to proceed in forma pauperis states that he has “no control” over whether prison officials deduct money from his prison trust fund account and that prison officials have been “playing games with the courts” by failing to deduct funds from Plaintiff's account despite his requests for them to do so. Renewed Mot. Proceed IFP 1, ECF No. 24. Plaintiff also states that he generally has approximately $50.00 a month deposited to his account, but he currently has a zero balance. Id. Given this information, Plaintiff's renewed motion for leave to proceed in forma pauperis (ECF No. 24) is GRANTED, and the Court will waive the requirement that Plaintiff pay an initial partial filing fee before further processing of his claims. Plaintiff is reminded, however, that he is still responsible for paying the entire amount of the filing fee in installments, and that money will be deducted from Plaintiff's account until the filing fee ($350.00) is paid in full as set forth in 28 U.S.C. § 1915(b).
Plaintiff's claims are now ripe for preliminary screening pursuant to 28 U.S.C. § 1915A and § 1915(e). Having conducted this screening, the Court finds that Plaintiff's claims that Defendant Siska failed to provide him appropriate medical care may proceed for further factual development. It is RECOMMENDED, however, that his remaining claims be DISMISSED without prejudice. It is also RECOMMENDED that Plaintiff's motions for preliminary injunctive relief (ECF Nos. 19, 22) be DENIED. Plaintiff's motion for appointed counsel (ECF No. 23) is again DENIED.
PRELIMINARY SCREENING OF PLAINTIFF'S COMPLAINT
I. Standard of Review
The Prison Litigation Reform Act (“PLRA”) obligates the district courts to conduct a preliminary screening of every complaint filed by a prisoner who seeks redress from a government entity, official, or employee. See 28 U.S.C. § 1915A(a). Screening is also required under 28 U.S.C. § 1915(e) when the plaintiff is proceeding IFP. Both statutes apply in this case, and the standard of review is the same. When conducting preliminary screening, the Court must accept all factual allegations in the complaint as true. Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) abrogated in part on other grounds by Wilkins v. Gaddy, 559 U.S. 34 (2010); Hughes v. Lott, 350 F.3d 1157, 1159-60 (11th Cir. 2003). Pro se pleadings, like the one in this case, are “‘held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed.'” Hughes, 350 F.3d at 1160 (citation omitted). Still, the Court must dismiss a prisoner complaint if it “(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. §1915A(b).
A claim is frivolous if it “‘lacks an arguable basis either in law or in fact.'” Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008) (citation omitted). The Court may dismiss claims that are based on “‘indisputably meritless legal'” theories and “‘claims whose factual contentions are clearly baseless.'” Id. (citation omitted). A complaint fails to state a claim if it does not include “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)). The factual allegations in a complaint “must be enough to raise a right to relief above the speculative level” and cannot “‘merely create[] a suspicion [of] a legally cognizable right of action.'” Twombly, 550 U.S. at 555 (citation omitted). In other words, the complaint must allege enough facts “to raise a reasonable expectation that discovery will reveal evidence” supporting a claim. Id. at 556. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
To state a claim for relief under § 1983, a plaintiff must allege that (1) an act or omission deprived him of a right, privilege, or immunity secured by the Constitution or a statute of the United States; and (2) the act or omission was committed by a person acting under color of state law. Hale v. Tallapoosa Cnty., 50 F.3d 1579, 1582 (11th Cir. 1995).
If a litigant cannot satisfy these requirements or fails to provide factual allegations in support of his claim or claims, the complaint is subject to dismissal. See Chappell v. Rich, 340 F.3d 1279, 1282-84 (11th Cir. 2003).
II. Factual Allegations and Plaintiff's Claims
Most of Plaintiff's claims arise from his treatment at the Riverbend Correctional Facility (“RCF”) beginning in July of 2022. Recast Compl. 1, ECF No. 21. As discussed in more detail below, Plaintiff contends that Defendants' action and inaction in that facility violated his constitutional rights. As a result of these alleged constitutional violations, Plaintiff primarily seeks injunctive relief and monetary damages. Id. at 7.
A. Motion for Appointed Counsel
As a preliminary matter, Plaintiff has again moved for the appointment of counsel in this action. Attach. 1 to Mot. Preliminary Inj. 1, ECF No. 22-1. The Court again advises Plaintiff that “[a]ppointment of counsel in a civil case is not a constitutional right.” Wahl v McIver, 773 F.2d 1169, 1174 (11th Cir. 1986). Appointment of counsel is a privilege that is justified only by exceptional circumstances. Id. In deciding whether legal counsel should be provided, the Court considers, among other factors, the merits of Plaintiff's claim and the complexity of the issues presented. Holt v. Ford, 862 F.2d 850, 853 (11th Cir. 1989).But “[t]he key” in determining whether appointed counsel is warranted “is whether the pro se litigant needs help in presenting the essential merits of his position to the court.” Nelson v. McLaughlin, 608 Fed.Appx. 904, 905 (11th Cir. 2015) (per curiam)
The federal in forma pauperis statute authorizes courts to “request an attorney to represent any person unable to afford counsel,” 28 U.S.C. § 1915(e)(1). The statute does not, however, provide any funding to pay attorneys for their representation or authorize courts to compel attorneys to represent an indigent party in a civil case. See Mallard v. U.S. Dist. Ct. for S. Dist. of Iowa, 490 U.S. 296 (1989).
In accordance with Holt, and upon a review of the record in this case, the Court notes that Plaintiff has set forth the essential merits of his claims, and the applicable legal doctrines are readily apparent. As such, Plaintiff's motion for appointed counsel is denied. Should it later become apparent that legal assistance is required in order to avoid prejudice to Plaintiff's rights, the Court, on its own motion, will consider assisting him in securing legal counsel at that time. Consequently, there is no need for Plaintiff to file additional requests for counsel.
B. Medical Treatment Claims
Plaintiff's Recast Complaint, which is the operative pleading in this action, centers on his allegations that Defendants failed to provide him with adequate medical treatment at RCF. Recast Compl. 1, ECF No. 21. Plaintiff arrived at RCF on July 19, 2022, and he was immediately placed in segregation awaiting protective custody review. Id. Later that day Plaintiff saw Defendant Watson, a warden at RCF, and explained that he had a “malfunctioning heart.” Recast Compl. 2, ECF No. 27. Defendant Watson replied, “Stanley I already talked to Warden Stone about you there is nothing wrong with your heart.” Id. When Plaintiff further explained his concerns, Defendant Watson told Plaintiff he should “fill out a sick call or file another lawsuit.” Id.
Plaintiff then met with Defendant Siska, the prison physician, for his new arrival physical. Recast Compl. 2, ECF No. 21. Plaintiff alleges that Defendant Siska advised Plaintiff that he was “not cardiac,” reduced the dosage of his blood pressure medication, and prescribed an additional medication, Novasc. Id. Plaintiff expressed concern about this course of treatment and explained that the blood pressure medication had previously been prescribed because Plaintiff's heart was beating too fast. Id. Although Defendant Siska appeared to agree not to change Plaintiff's medication, the next day Plaintiff received the reduced dosage and Novasc rather than the previously-prescribed medication. Id. Plaintiff states he then experienced a “medical emergency” on November 1, 2022, where his blood pressure and heart rate were elevated. Id. at 3. Plaintiff's medication was changed back to the original dosage on or about December 8, 2022. Id.
On October 28, 2022, Plaintiff also noticed he “felt extreme testicle pains” when he coughed. Recast Compl. 3, ECF No. 21. Plaintiff also felt several knots on each testicle. Id. Plaintiff talked to the night medication nurse who told him his symptoms could be “a sign of testicle cancer.” Id. The next morning, Plaintiff went to sick call. Id. Defendant Coleman, a nurse, “felt a few hard spots” on Plaintiff's testicles and Defendant Harden, a nurse practitioner, said she would order an ultrasound. Id. On November 1, 2022, when Plaintiff was being seen for his elevated blood pressure and heart rate, another nurse, Defendant Mullen, also felt the knots on Plaintiff's testicles, made a note about the knots in Plaintiff's records, and ordered an ultrasound. Id.
On November 8, 2022, Plaintiff “thought [he] was going to receive [his] ultrasound,” but Defendant Mullen told Plaintiff Defendant Siska canceled the procedure because he wanted to examine Plaintiff himself. Recast Compl. 3, ECF No. 21. Defendant Siska visually examined Plaintiff's testicles using a flashlight and felt the knots but told Plaintiff, “Nope, it's not cancer,” and he did not provide further treatment. Id. Plaintiff also states that Defendants Siska, Harden, and Coleman “told the sick call nurses not to pull [Plaintiff] out or respond to sick calls about knots on testicles.” Id.
Jail officials who are deliberately indifferent to a prisoner's serious medical needs can violate the Eighth Amendment. Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003). “To show that a prison official acted with deliberate indifference to serious medical needs, a plaintiff must satisfy both an objective and a subjective inquiry.” Farrow, 320 F.3d at 1243. A plaintiff must first “set forth evidence of an objectively serious medical need” and must also “prove that the prison official acted with an attitude of ‘deliberate indifference' to that serious medical need.” Id. In other words, prison officials must both “know of and then disregard an excessive risk to the prisoner.” Dunn v. Martin, 178 Fed.Appx. 876, 877 (11th Cir. 2006) (per curiam). For purposes of this analysis, a “serious medical need” is “one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Farrow, 320 F.3d at 1243 (internal quotation marks omitted).
Although the precise nature of Plaintiff's heart condition is unclear, he has alleged he has been diagnosed with a problem with the left ventricle of his heart. Recast Compl. 2, ECF No. 21. Apparently, this problem causes Plaintiff's blood pressure and heart rate to be elevated, and he was prescribed medication for those symptoms. Id. The Court will therefore assume without deciding that Plaintiff's heart condition is a serious medical need. Plaintiff, however, has not alleged Defendants have been deliberately indifferent to that serious medical need. At most, Plaintiff contends Defendant Siska changed his medication regimen when he examined Plaintiff and his medical records during a routine intake physical. Recast Compl. 2, ECF No. 21. The fact that Defendant Siska prescribed different medications than another physician is a difference in medical opinion that does not rise to the level of deliberate indifference. See, e.g., Bauer v. Kramer, 424 Fed.Appx. 917, 919 (11th Cir. 2011) (per curiam) (“A doctor's decision about the type of medicine that should be prescribed is generally a medical judgment that is an inappropriate basis for imposing liability under section 1983.” (internal quotation marks omitted); Bismark v. Fisher, 213 Fed.Appx. 892, 897 (11th Cir. 2007) (per curiam) (holding that a doctor's decision not to adopt plan of care prescribed by outside physician failed to support a claim for deliberate indifference); Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1989) (explaining that “a simple difference in medical opinion” does not constitute deliberate indifference). Likewise, Defendant Siska's decision that Plaintiff's heart condition did not require treatment by an outside specialist is a matter of medical judgment that, standing alone, does not rise to the level of deliberate indifference. Tucker v. Busbee, 619 Fed.Appx. 868, 871 (11th Cir. 2015) (per curiam) (prison physician's decision not to provide inmate “with immediate specialized treatment” by outside retina specialist “was a matter of medical judgment” that “does not constitute deliberate indifference within the meaning of the Eighth Amendment”). Plaintiff's allegations concerning his heart condition fail to state an actionable claim and should therefore be dismissed without prejudice.
The fact that Plaintiff suggests that Defendant Siska's regimen was not the most effective does not change this analysis; “the Constitution doesn't require that the medical care provided to prisoners be perfect, the best obtainable, or even very good.” Keohane v. Fla. Dep't Corrs. Sec'y, 952 F.3d 1257, 1266 (11th Cir. 2020) (internal quotation marks omitted). Moreover, Defendant Siska reverted to Plaintiff's prior prescription after a few months. Recast Compl. 3, ECF No. 21.
Plaintiff's claim that Defendant Siska failed to provide him with adequate medical attention for the knots on his testicles presents a closer question. According to Plaintiff's allegations, which the Court must construe liberally and take as true, Plaintiff was experiencing “extreme pain” in his testicles, at least three prison medical staff expressed concern about the knots in his testicles, and at least two prison medical staff members recommended that an ultrasound be performed. Despite this, Defendant Siska cancelled the ultrasound orders, performed what Plaintiff alleges was a cursory examination of Plaintiff's testicles, and told Plaintiff he did not have cancer. Plaintiff's allegations suggest that Defendant Siska took no additional steps to address Plaintiff's pain or attempt to diagnose its source and that Defendant Siska allegedly forbade prison medical staff from addressing any of Plaintiff's future complaints about the knots in his testicles. At this early stage, the Court cannot conclude that Plaintiff's deliberate indifference claim against Defendant Siska concerning the knots in his testicles is necessarily frivolous. Keohane, 952 F.3d at 1266-67 (observing that “responding to an inmate's acknowledged medical need with what amounts to a shoulder-shrugging refusal even to consider whether a particular course of treatment is appropriate is the very definition of ‘deliberate indifference'”). This claim shall proceed for further factual development.
To the extent Plaintiff wishes to sue the remaining Defendants for deliberate indifference to his serious medical needs, Plaintiff has failed to state an actionable claim. Plaintiff has sued four additional medical professionals in addition to Defendant Siska- Defendants Harden, Coleman, Mullen, and Dennis. Recast Compl. 1, ECF No. 21. Defendant Harden is a nurse practitioner; the remaining Defendants appear to be nurses. Id. Plaintiff's allegations against these Defendants essentially amount to claims that they deferred to Defendant Siska's medical judgment. Nurses are generally not constitutionally liable when they reasonably follow a doctor's orders. See Bauer, 424 Fed.Appx. at 919 (“[A] nurse is not deliberately indifferent when she reasonably follows a doctor's orders by administering prescribed medication to an inmate.”); Welch v. Valentine, No. 5:10-cv-43-MTT, 2012 WL 3637738, at *3 (M.D. Ga. July 13, 2012) (finding that a nurse cannot be deliberately indifferent if she reasonably follows a physician's orders). Moreover, in several instances these Defendants recommended that additional testing be done, but Defendant Siska overrode these recommendations. Plaintiff has therefore failed to allege facts sufficient to show that Defendants Harden, Coleman, Mullen, and Dennis were deliberately indifferent to his serious medical needs, and these claims should be dismissed without prejudice.
Plaintiff's claims against the remaining prison officials should likewise be dismissed. Plaintiff generally seeks to hold the remaining Defendants responsible for failing to provide him treatment despite knowing Plaintiff “is dying from [his] injuries.” See, e.g., Recast Compl. 5-6, ECF No. 21. None of the remaining Defendants is a medical professional. When a prison official who is not a medical professional is accused of deliberate indifference to medical needs, a plaintiff must show that the nature of his injury was so obvious that these officials must have known that a medical professional had not appropriately treated the injury or that these officials had some reason to believe that prison medical staff was not appropriately treating the prisoner. See, e.g., Kuhne v. Fla. Dep't Corr., 618 Fed.Appx. 498, 507 (11th Cir. 2015) (per curiam) (holding that “when a layperson is accused of deliberate indifference, the plaintiff must present[] evidence that her situation was so obviously dire that two lay [officers] must have known that a medical professional had grossly misjudged [the plaintiff's] condition” (internal quotation marks omitted) (alterations in original)). Plaintiff does not allege facts sufficient to meet either of these conditions. At best, Plaintiff alleges Defendants were not responsive to his grievances. See, e.g., Recast Compl. 5-6, ECF No. 21 (asserting that Defendants Ward, Mingo, and Jefferson failed to acknowledge or respond to emergency grievances and letters concerning Plaintiff's health issues). The fact that some of the named Defendants did not respond to Plaintiff's grievances about his medical care does not necessarily mean they were deliberately indifferent to his serious medical needs. Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993) (holding that two defendants who were not medical professionals could not be deliberately indifferent “simply because they failed to respond directly to the medical complaints of a prisoner who was already being treated by the prison doctor”). Prison officials additionally advised Plaintiff to file a sick call form if he wished to see a practitioner, and Plaintiff does not allege that they hindered him from doing so. Recast Compl. 3, ECF No. 21. Plaintiff's medical deliberate indifference claims against the remaining Defendants should therefore also be dismissed without prejudice.
Finally, to the extent Plaintiff is alleging that Defendants retaliated against him for complaining about the lack of medical care, he has failed to state facts sufficient to support an actionable claim. It is well established that an adverse action imposed in retaliation for a prisoner's exercise of a constitutionally protected right is actionable. Wildberger v. Bracknell, 869 F.2d 1467, 1468 (11th Cir. 1989) (per curiam). To state a retaliation claim, an inmate generally needs to show that he engaged in protected conduct; that the prison official's retaliatory conduct adversely affected the protected conduct; and a causal connection between the protected conduct and the adverse action. See, e.g., Moton v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011). Even assuming that complaining about one's medical care constitutes protected conduct, Plaintiff has not shown that any named Defendant took an adverse action against him because he complained about his medical care. Plaintiff's retaliation claims related to his complaints about his medical care should therefore be dismissed without prejudice.
Any claim that Plaintiff may have been retaliated against for complaining about his legal mail or the lack of protective custody is not logically related to Plaintiff's claims about his medical care. See section II.C, infra. Likewise any allegations as to whether any individual at the Coffee County Correctional Facility retaliated against Plaintiff after he complained about “medical malpractice” are not related to this case, as Plaintiff contends those claims are pending in another of his lawsuits. Recast Compl. 1, ECF No. 21.
C. Remaining Claims
Plaintiff's Recast Complaint seeks to raise to several additional claims. Plaintiff alleges that Defendant McRae, a GDC investigator, suggested that Plaintiff's family would be harmed if Plaintiff filed a lawsuit against RCF. Recast Compl. 2, ECF No. 21. Plaintiff also claims that Defendant Tucker, the RCF mailroom supervisor, interfered with his legal mail. Id. at 4-5. Plaintiff further alleges that he was transferred to Dooly State Prison after “making investigator McRae and Warden Watson look bad” concerning Plaintiff's legal mail. Id. at 5. In addition, Plaintiff contends he was placed in quarantine in general population at Dooly instead of being placed in protective custody despite there being a bounty on his head. Id. Plaintiff states he was assaulted by officers when he arrived at Dooly, and his property was stolen. Id. Plaintiff alleges that Defendant Morrison, a lieutenant at RCF, knew this assault would occur. Id. Plaintiff also mentions that he has not received any law library time since his transfer to Dooly. Id.
These claims are subject to dismissal because they are not related to Plaintiff's claims that Defendants at RCF failed to provide him with adequate medical care. The Federal Rules of Civil Procedure permit a plaintiff to join only related claims and defendants in a single complaint. To properly join defendants under Federal Rule of Civil Procedure 20(a)(2), the plaintiff must establish that he is asserting a right to relief against them “jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences,” and that “any question of law or fact common to all defendants will arise in the action.” The Eleventh Circuit applies the “logical relationship” test to determine whether claims arise from the same transaction or occurrence for joinder purposes. See, e.g., Smith v. Trans-Siberian Orchestra, 728 F.Supp.2d 1315, 1319 (M.D. Fla. 2010) (citing Republic Health Corp. v. Lifemark Hosp. Corp. of Fla., 755 F.2d 1453, 1455 (11th Cir. 1985)). “Under this test, there is a logical relationship when the same operative facts serve as the basis of both claims or the aggregate core of facts upon which the claim rests activates additional legal rights, otherwise dormant, in the defendant.” Republic Health Corp., 755 F.2d at 1455 (internal quotation marks omitted). In exercising its discretion regarding joinder, the Court should “provide a reasoned analysis that comports with the requirements of the Rule” and “based on the specific fact pattern presented by the plaintiffs and claims before the court.” Hagan v. Rogers, 570 F.3d 146, 157 (3d Cir. 2009). The Court's discretion is also informed by the PLRA and its goals of preventing unwieldy litigation, ensuring the payment of filing fees, and limiting prisoners' ability to bring frivolous cases. See, e.g., George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).
The standard for whether claims arise from the same transaction or occurrence for Rule 20 purposes is the same as that used for compulsory counterclaims under Federal Rule of Civil Procedure 13. See Smith, 728 F.Supp.2d at 1319.
In this case, Plaintiff has not pleaded facts sufficient to establish that his medical treatment claims against Defendant Siska are logically related to his remaining claims. The Eleventh Circuit has held that more than just a minimal connection between a series of different transactions or occurrences must exist before joinder is proper. Skillern v. Ga. Dep't of Corr. Comm'r, 379 Fed.Appx. 859, 860 (11th Cir. 2010) (per curiam) (holding that prisoner failed to demonstrate that claims against defendants arose out of the same transaction, occurrence, or series of transactions or occurrences where the only “connection between the people and events [the prisoner] described” was that the actions “showed indifference to his failing health”); see also State Distributors, Inc. v. Glenmore Distilleries Co., 738 F.2d 405, 416-17 (10th Cir. 1984) (affirming denial ofjoinder where allegations against proposed defendant were “only tangentially related to the issues and series of transactions” in the pending case because “[d]ifferent elements of proof are required for the proposed cause of action, involving different questions of fact and law”). In this case, Plaintiff's medical treatment claims do not bear even a tangential relationship to his remaining claims, which have nothing to do with his medical care and mostly occurred in a different prison. Plaintiff has thus failed to show that his claims bear any logical relationship to one another for purposes of Rule 20. Because joinder is thus inappropriate, and because it does not appear that the statute of limitations would bar Plaintiff from refiling his remaining claims if he acts promptly to do so, these claims should be dismissed without prejudice. See Fed.R.Civ.P. 21; see also DirecTV, Inc. v. Leto, 467 F.3d 842, 844-45 (3d Cir. 2006) (holding that “district judges have discretion to remedy misjoinders either by severing claims or dismissing them without prejudice”).
Because these claims would be dismissed without prejudice, Plaintiff may refile his claims if he desires. The Clerk is DIRECTED to furnish Plaintiff a copy of the Court's standard § 1983 form that Plaintiff may use for this purpose.
D. Motions for Preliminary Injunctions
Finally, Plaintiff has pending before the Court two motions for preliminary injunctive relief (ECF Nos. 19, 22). In these motions, Plaintiff again alleges that “his life is in danger and his family's life is in danger” because of bounties placed on his head by Wardens Danforth and Stone at Coffee Correctional Facility, Warden Watson at Riverbend Correctional Facility, and Warden Whitentin at Wilcox State Prison. 2d Mot. Protective Order 1, ECF No. 19. Plaintiff therefore seeks protective custody and requests “to talk to an investigator as soon as possible” concerning the threat to his family. Id. at 2. Plaintiff also reiterates his desire to be treated for his heart conditions and possible testicular cancer, and he further alleges that Defendants are tampering with his legal mail. Id. at 4; see also Mot. Preliminary Inj. 1, ECF No. 22.
As the Court has previously explained to Plaintiff, a temporary restraining order (“TRO”) or preliminary injunction is a drastic remedy used primarily to preserve the status quo rather than grant most or all of the substantive relief sought in the complaint. See, e.g., Cate v. Oldham, 707 F.2d 1176, 1185 (11th Cir. 1983); Fernandez-Roque v. Smith, 671 F.2d 426, 429 (11th Cir. 1982). Factors a movant must show to be entitled to a TRO include: “(1) a substantial likelihood of ultimate success on the merits; (2) the TRO is necessary to prevent irreparable injury; (3) the threatened injury outweighs the harm the TRO would inflict on the non-movant; and (4) the TRO would serve the public interest.” Ingram v. Ault, 50 F.3d 898, 900 (11th Cir. 1995) (per curiam).
The standard for obtaining a TRO is the same as the standard for obtaining a preliminary injunction. See Parker v. State Bd. of Pardons & Paroles, 275 F.3d 1032, 1034-35 (11th Cir. 2001) (per curiam); Windsor v. United States, 379 Fed.Appx. 912, 916-17 (11th Cir. 2010) (per curiam).
Despite the Court's previous order explaining that these are the factors he needs to discuss in any motion seeking preliminary injunctive relief, Plaintiff has again failed to set forth specific facts clearly supporting each of these factors in his motions. And, at this juncture the facts have not been sufficiently developed to conclude that there is a substantial likelihood that Plaintiff will ultimately prevail on the merits. Furthermore, the Defendants have not been served or had a meaningful opportunity to respond to Plaintiff's allegations. Fed.R.Civ.P. 65(a)(1). Defendants should be afforded an opportunity to respond to Plaintiff's allegations, and any claims for injunctive relief can be addressed as this case proceeds. Accordingly, Plaintiff's claims for preliminary injunctive relief or a temporary restraining order should be denied.
III. Conclusion
For the foregoing reasons, Plaintiff's renewed motion for leave to proceed in forma pauperis (ECF No. 24) is GRANTED, and the Court will waive the requirement that the previously-ordered initial partial filing fee be paid before further processing of Plaintiff's case. Plaintiff's claims that Defendant Siska failed to provide him appropriate medical care may also proceed for further factual development. Plaintiff's motion for appointed counsel (ECF No. 23) is DENIED, and his motion for an extension of time to recast his Complaint (ECF No. 20) is DENIED as moot. It is additionally RECOMMENDED that Plaintiff's remaining claims be DISMISSED without prejudice and that Plaintiff's motions for preliminary injunctive relief (ECF Nos. 19, 22) be DENIED.
OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to these recommendations with the Honorable C. Ashley Royal, Senior United States District Judge, WITHIN FOURTEEN (14) DAYS after being served with a copy of this Recommendation. Any objection is limited in length to TWENTY (20) PAGES. See M.D. Ga. L.R. 7.4. The parties may seek an extension of time in which to file written objections, provided a request for an extension is filed prior to the deadline for filing written objections. Failure to object in accordance with the provisions of § 636(b)(1) waives the right to challenge on appeal the district judge's order based on factual and legal conclusions to which no objection was timely made. See 11th Cir. R. 3-1.
ORDER FOR SERVICE
Having found that Plaintiff has made colorable constitutional violation claims against Defendant Siska, it is accordingly ORDERED that service be made on that Defemdant and that they file an Answer, or such other response as may be appropriate under Rule 12, 28 U.S.C. § 1915, and the Prison Litigation Reform Act. Defendant is reminded of the duty to avoid unnecessary service expenses, and of the possible imposition of expenses for failure to waive service pursuant to Rule 4(d).
DUTY TO ADVISE OF ADDRESS CHANGE
During the pendency of this action, all parties shall keep the Clerk of this Court and all opposing attorneys and/or parties advised of their current address. Failure to promptly advise the Clerk of a change of address may result in the dismissal of a party's pleadings.
DUTY TO PROSECUTE ACTION
Plaintiff is also advised that he must diligently prosecute his Complaint or face the possibility that it will be dismissed under Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute. All Defendants are similarly advised that they are expected to diligently defend all allegations made against them and to file timely dispositive motions as hereinafter directed. This matter will be set down for trial when the Court determines that discovery has been completed and that all motions have been disposed of or the time for filing dispositive motions has passed.
FILING AND SERVICE OF MOTIONS, PLEADINGS, AND CORRESPONDENCE
It is the responsibility of each party to file original motions, pleadings, and correspondence with the Clerk of Court. A party need not serve the opposing party by mail if the opposing party is represented by counsel. In such cases, any motions, pleadings, or correspondence shall be served electronically at the time of filing with the Court. If any party is not represented by counsel, however, it is the responsibility of each opposing party to serve copies of all motions, pleadings, and correspondence upon the unrepresented party and to attach to said original motions, pleadings, and correspondence filed with the Clerk of Court a certificate of service indicating who has been served and where (i.e., at what address), when service was made, and how service was accomplished.
DISCOVERY
Plaintiff shall not commence discovery until an answer or dispositive motion has been filed on behalf of the Defendant from whom discovery is sought by the Plaintiff. The Defendant shall not commence discovery until such time as an answer or dispositive motion has been filed. Once an answer or dispositive motion has been filed, the parties are authorized to seek discovery from one another as provided in the Federal Rules of Civil Procedure. The deposition of the Plaintiff, a state/county prisoner, may be taken at any time during the time period hereinafter set out provided prior arrangements are made with his custodian. Plaintiff is hereby advised that failure to submit to a deposition may result in the dismissal of his lawsuit under Rule 37 of the Federal Rules of Civil Procedure.
IT IS HEREBY ORDERED that discovery (including depositions and the service of written discovery requests) shall be completed within 90 days of the date of filing of an answer or dispositive motion by the Defendant (whichever comes first) unless an extension is otherwise granted by the court upon a showing of good cause therefor or a protective order is sought by the defendant and granted by the court. This 90-day period shall run separately as to Plaintiff and Defendant beginning on the date of filing of Defendant's answer or dispositive motion (whichever comes first). The scheduling of a trial may be advanced upon notification from the parties that no further discovery is contemplated or that discovery has been completed prior to the deadline.
Discovery materials shall not be filed with the Clerk of Court. No party shall be required to respond to any discovery not directed to him/her or served upon him/her by the opposing counsel/party. The undersigned incorporates herein those parts of the Local Rules imposing the following limitations on discovery: except with written permission of the court first obtained, interrogatories may not exceed TWENTY-FIVE (25) to each party, requests for production of documents and things under Rule 34 of the Federal Rules of Civil Procedure may not exceed TEN (10) requests to each party, and requests for admissions under Rule 36 of the Federal Rules of Civil Procedure may not exceed FIFTEEN (15) requests to each party. No party shall be required to respond to any such requests which exceed these limitations.
REQUESTS FOR DISMISSAL AND/OR JUDGMENT
The Court shall not consider requests for dismissal of or judgment in this action, absent the filing of a motion therefor accompanied by a brief/memorandum of law citing supporting authorities. Dispositive motions should be filed at the earliest time possible, but in any event no later than one hundred - twenty (120) days from when the discovery period begins unless otherwise directed by the Court.
SO ORDERED AND RECOMMENDED.