Opinion
CV 117-177
03-05-2018
TAVARRES J. HENDERSON, Petitioner, v. RICHARD ROUNDTREE, Sherifff, Respondent.
ORDER
After a careful, de novo review of the file, the Court concurs with the Magistrate Judge's Report and Recommendation ("R&R"), to which objections have been filed (doc. no. 14). Petitioner has also filed two identical Motions to Amend his Petition, in which he raises the same arguments raised in his objections. (Doc. nos. 9, 10.)
Federal Rule of Civil Procedure 15, which governs amendment of pleadings, applies to § 2241 petitions. Mayle v. Felix, 545 U.S. 644, 655 (2005). Rule 15(a)(1) provides that:
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.As Respondent has not yet answered, Petitioner can properly amend his petition under Fed. R. Civ. P. 15(a) without leave of the Court and Petitioner's Motions to Amend are MOOT. (Doc. nos. 9, 10.) Because Petitioner could properly amend, the Court must address Petitioner's amended claims.
In his amended petition, Petitioner raises the same claims as in his original petition, but argues he "has and will suffer irreparable injury." (Doc. no. 9, p. 2.) Petitioner also details Superior Court Judge Carl C. Brown, Jr.'s alleged refusal to allow him to argue his pro se motion to quash the indictment and pro se demand for a pre-trial special demurrer in his state court criminal proceeding. (Id.) Although Petitioner claims he has suffered irreparable injury, he has alleged no supporting facts, and "[t]he defense of a single criminal prosecution has been held not to amount to 'irreparable injury' that would justify injunctive intervention by the federal courts." Tatzel v. Hanlon, 530 F.2d 1205, 1206 (5th Cir. 1976) (citations omitted). Moreover, even if he has been prevented from seeking such relief in his criminal proceeding, he has not shown he has pursued relief via collateral proceedings in the Georgia state courts. (See doc. no. 6, p. 3 (citing Hughes v. Coursey, No. CV 110-077, 2010 WL 3338696, at *2 (S.D. Ga. July 27, 2010), adopted by, 2010 WL 3338694 (S.D. Ga. Aug. 20, 2010)).) Therefore, Petitioner's claims as amended remain unexhausted and subject to Younger abstention as explained in the R&R.
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981. --------
The Court OVERRULES Petitioner's objections, ADOPTS the R&R of the Magistrate Judge as its opinion, DENIES AS MOOT Petitioner's Request to Submit Legal Documents (doc. no. 8) and Motion Demand for Grand Jury Subpoena (doc. no. 13), DISMISSES without prejudice the petition filed pursuant to 28 U.S.C. § 2241, and CLOSES this civil action.
SO ORDERED this 5th day of March, 2018, at Augusta, Georgia.
/s/_________
J. RANDAL HALL, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA