Opinion
CASE NO. 5:16-CV-00490-TES-MSH
03-11-2019
TAMARKUS LAKEITH WRIGHT, Plaintiff, v. Warden BRUCE CHATMAN, et al., Defendants.
ORDER AND REPORT AND RECOMMENDATION
Pending before the Court are Plaintiff's motions for class certification (ECF No. 67), appointment of counsel (ECF No. 79), leave to interview potential witnesses (ECF No. 80), and leave to amend his complaint (ECF No. 84). For the reasons explained below, it is recommended that his motion for class certification be denied. Plaintiff's motions for appointment of counsel and leave to interview potential witnesses are denied. His motion to amend is granted in part and denied in part.
BACKGROUND
On October 28, 2016, Plaintiff filed a complaint under 42 U.S.C § 1983, alleging Defendants violated his procedural due process rights by confining him in the Special Management Unit ("SMU") at the Georgia Diagnostic and Classification Prison ("GDCP"). Compl. 6, ECF No. 1. On April 14, 2017, Defendants moved to dismiss Plaintiff's claims. Mot. to Dismiss 1, ECF No. 20. Plaintiff did not file a response to Defendants' motion, but instead filed an amended complaint that added claims for excessive force, deliberate indifference to medical needs, and violation of his due process rights relating to a 2012 prison riot. Am. Compl. 7-10, ECF No. 24. Plaintiff also added a federal deliberate indifference to medical needs claim, a state law tort claim relating to a slip and fall incident, Religious Land Use and Institutionalized Persons Act ("RLUIPA") claims, and access to court claims. Id. at 13-19. The Court allowed Plaintiff's procedural due process claims arising after October 28, 2014, against Defendants Bruce Chatman, June Bishop, William Powell, William McMillian, Rufus Logan, Rodney McCloud, Michael Cannon, Caldwell, Betty Dean, Homer Bryson, Victor Walker, Timothy Ward, and Rick Jacobs to proceed. Order 11, Nov. 14, 2017, ECF No. 60. All Plaintiff's other claims were dismissed. Id. Plaintiff now seeks class certification of similarly situated inmates in the GDCP SMU (ECF No. 67), appointment of counsel (ECF No. 79), leave to interview witnesses (ECF No. 80), and leave to amend his complaint (ECF No. 84). These motions are ripe for review.
The Court's November 14, 2017, Order (ECF No. 60) contained a clerical error indicating that Plaintiff's procedural due process claims arising after October 28, 2015, could go forward. This was corrected to state that his procedural due process claims arising after October 28, 2014, could go forward. Text-only Order, ECF No. 93.
DISCUSSION
I. Motion for Class Certification
Plaintiff moves for class certification of claims by similarly situated inmates held in the SMU at GDCP. Mot. for Class Certification 1, ECF No. 67. His proposed class would include various plaintiffs who have already filed suit in the Federal District Court for the Middle District of Georgia as well as other known and unknown prisoners confined in the SMU. Id. at 1-2, 4.
It is recommended that Plaintiff's motion be denied. A pro se Plaintiff may not bring a class action on behalf of other prisoners. Smith v. Hill, No. 5:16-CV-333-MTT-CHW, 2016 WL 4414788, at *1 (M.D. Ga. Aug. 18, 2016). Moreover, one of the other similarly situated SMU prisoners identified by Plaintiff, Timothy Gumm, has already been appointed counsel in his action, and that counsel filed for class certification. Pls.' Am. Mot. to Certify Class at 1, Gumm v. Sellers, No. 5:15-cv-41-MTT-CHW (M.D. Ga. July 13, 2018). Preliminary approval of a class action settlement has been granted and a fairness hearing scheduled. Gumm v. Ford, No. 5:15-cv-41-MTT-CHW, 2019 WL 479506, at *8-9 (M.D. Ga. Jan. 17, 2019). Certification of a class action in this case, therefore, would be duplicative.
II. Motion for Appointment of Counsel
For the second time, Plaintiff requests appointed counsel. 2nd Mot. to Appoint Couns. 2, ECF No. 79. Plaintiff's first request (ECF No. 25) was denied. Order & R. & R. 16-17, ECF No. 29. As previously explained, under 28 U.S.C. § 1915(e)(1), the district court "may request an attorney to represent any person unable to afford counsel." There is, however, "no absolute constitutional right to the appointment of counsel" in a § 1983 lawsuit. Poole v. Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987) (per curiam). Appointment of counsel is a privilege that is justified only by exceptional circumstances. Lopez v. Reyes, 692 F.2d 15, 17 (5th Cir. 1982). 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). Plaintiff has failed to present any extraordinary circumstances which would justify the appointment of counsel in this case and has filed pleadings and motions setting out his contentions such as to allow review by this Court. Plaintiff's request for court-appointed counsel is denied.
III. Motion to Interview Witnesses
Plaintiff also seeks a court order compelling Defendants to allow him to interview several inmates he contends are within their custody and control. Mot. to Interview Witnesses 1, ECF No. 80. Plaintiff asserts these inmates are material witnesses due to their knowledge of conditions in the SMU. Id. at 2-3. The Plaintiff's motion is denied as moot. Discovery may be taken in accordance with the Federal Rules of Civil Procedure. No further court order is required before the parties may conduct discovery.
Plaintiff is reminded, however, that "[w]hile 28 U.S.C. § 1915(a) permits a pauper to commence litigation without prepayment of the filing fee, no provision of that statute authorizes courts to commit federal monies for payment of the necessary expenses in a civil suit brought by an indigent litigant." Wilkerson v. Georgia, No. CV614-041, 2015 WL 5449144, at *1 (S.D. Ga. Sept. 10, 2015) (citation and punctuation omitted). Plaintiff must be prepared, therefore, to bear the expenses associated with deposition of witnesses.
IV. Motion to Amend Complaint
Finally, Plaintiff seeks leave to amend his complaint to add various new defendants and claims. As Plaintiff previously amended his complaint (ECF No. 24), any further amendment requires written consent of the opposing party or the Court's leave. Fed. R. Civ. P. 15(a). Defendants oppose Plaintiff's motion (ECF No. 86), and so Plaintiff must obtain leave of the Court. The Court should freely grant leave to amend when justice so requires. Fed. R. Civ. P. 15(a)(2). However, the Court may deny leave to amend "(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 the opposing party; or (3) where amendment would be futile." Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001).
A. Motion to Add Defendants
Plaintiff seeks to add Ricky Myrick, Steve Upton, Randy Tillman, Eric Sellers, and Margaret Washington as defendants in their individual capacities, George Ball and Thomas Sumpter as defendants in their official capacities, and Dwain Williams in both his individual and official capacities. Mot. to Am. Compl. 2-5, ECF No. 84. Plaintiff's request is denied due to undue delay.
Plaintiff filed his original complaint on October 28, 2016, and his first amended complaint on March 29, 2017. Compl. 7, ECF No. 1; Am. Compl. 25. He did not seek to add these additional defendants, however, until August 30, 2018. Mot. to Amend Compl. 12. Plaintiff has not stated that he was unaware of these individuals at the time he filed his original or first amended complaint, nor has he provided an explanation as to why he did not act sooner. Where a party demonstrates unjustifiable delay in moving to amend, the court may deny the party's motion. Wright v. Waller, No. 5:10-cv-254-MTT, 2011 WL 3665118, at *1 (M.D. Ga. Aug. 22, 2011) (denying plaintiff's motion for leave to amend where the amended complaint was filed a year after the original complaint and seven months after defendant's motion to dismiss, and plaintiff did not attempt to justify the delay nor suggest the new claims were unknown at the time the original complaint was filed). The Court finds that Plaintiff has acted with undue delay in seeking leave to amend his complaint to add these defendants and so rejects Plaintiff's request.
These dates are based on the date of Plaintiff's signature. Under the prison mailbox rule, a pro se prisoner's court filing is deemed filed on the date it is delivered to prison authorities for mailing." United States v. Glover, 686 F.3d 1203, 1205 (11th Cir. 2012) (internal quotation marks omitted). "Unless there is evidence to the contrary, like prison logs or other records, we assume that a prisoner's motion was delivered to prison authorities on the day he signed it." Id. --------
B. Eighth Amendment Conditions of Confinement
Plaintiff also seeks leave to amend his complaint to add an Eighth Amendment conditions of confinement claim regarding his time in the SMU. Mot. to Amend Compl. 9. Plaintiff asserts he was housed in the SMU for over five years and that "[l]ong term isolation in the SMU constitutes cruel and unusual punishment" and "creates a risk of serious psychological harm." Id. at 6, 8. He contends Defendants were deliberately indifferent to such harm. Id. at 8.
While not specifically identified as such, Plaintiff raised a conditions of confinement claim in his first amended complaint. He cited the Eighth Amendment and described spending "approximately 1,340 days in extreme isolation" in a "modern dungeon" with only "35 square feet of unencumbered floor space." Am. Compl. 6, 12, 17. He also described a lack of access to fresh air, a limited view of the outside, deprivation of personal property, inability to attend educational programs or religious services, and limited visitation and contact with other prisoners. Id. at 12, 22. Plaintiff alleged the confinement was "punitive," without "legitimate penological justification," and "constitute[d] a gratuitous infliction of wanton and unnecessary pain" that did not comply with "evolving standards of decency." Id. at 12, 13. He asserted that the "extraordinarily long isolation" had caused him "pain, suffering, mental deterioration, and physical injury." Id. at 13.
Plaintiff's allegations as to the length of his confinement, its punitive nature, and his physical and emotional injuries are sufficient to state an Eighth Amendment claim. See Sheley v. Dugger, 833 F.2d 1420, 1429 (11th Cir. 1987) (noting that long terms of solitary confinement in close management administrative segregation raised serious constitutional questions in light of mental and physical deterioration alleged by inmate as well as contention that his confinement was punitive in nature). Further, similar cases involving the SMU at GDCP have been allowed to proceed for further factual development. See, e.g. Salgado v. Chatman, 5:15-cv-355-MTT-CHW, 2016 WL 2991116, at *2-3 (M.D. Ga. April 26, 2016); Emberson v. Chatman, No. 5:15-cv-331-MTT-CHW, 2016 WL 3456848, at *2-3 (M.D. Ga. April 26, 2016). To the extent not already asserted, therefore, Plaintiff's motion to amend his complaint to raise an Eighth Amendment conditions of confinement claim is granted.
C. Substantive Due Process
Plaintiff also seeks to add a Fourteenth Amendment substantive due process claim based on the conditions of his confinement. Mot. to Amend Compl. 9. A claim shall not be asserted under the notion of substantive due process, however, when a constitutional amendment "provides an explicit textual source of constitutional protection" against that claim. Graham v. Connor, 490 U.S. 386, 395 (1989). The Eighth Amendment provides a source of protection for Plaintiff's claims related to the conditions of his confinement. Rhodes v. Chapman, 452 U.S. 337, 345 (1981). Thus, any duplicative "substantive due process" claim would be futile. Accordingly, Plaintiff's motion to add this claim is denied.
D. Denial of Food
Plaintiff also seeks to add a claim for denial of food. Mot. to Amend Compl. 7, 9. He asserts he lost twenty-three pounds between January 2013 and "late 2016" due to "inadequate food portions" being served to SMU prisoners. Id. at 7. He alleges he "made frequent verbal complaints to correctional officials and SMU administrators...throughout the relevant time period." Id. He also claims that complaints by SMU prisoners were so common during this time that a sign was posted in the medical unit "admonishing prisoners not to request vitamins or meal supplements." Id.
Based on Plaintiff's assertions, he would have been well aware of the facts underlying this claim at the time he filed his original and first amended complaints. He has, however, provided no explanation as to why he did not seek to add this claim sooner or explain why justice requires that it be added. The Court, therefore, finds Plaintiff has acted with undue delay, and his motion to add a claim related to denial of food is denied.
E. Monetary Damages
Plaintiff seeks to amend his complaint to specify the amount of damages he is seeking. Mot. to Amend Compl. 10-11. Defendants do not object to this request. Resp. to Mot. to Amend Compl. 3, ECF No. 86. Plaintiff's motion to amend his complaint to specify the monetary damages claimed is granted.
F. Injunctive Relief
Finally, Plaintiff requests leave to amend his complaint to include a demand that he be transferred to general population at a prison offering programs that would increase his chances of parole. Mot. to Amend Compl. 10. Plaintiff has previously asserted a claim for injunctive relief that would require his release from punitive segregation and placement in general population. Compl. 7; Am. Compl. 21. The specific request for access to programs increasing his chances for parole is new.
Plaintiff's new claim for injunctive relief would be futile. According to Plaintiff, he has been transferred to Valdosta State Prison. Certificate of Serv. 1-2, ECF No. 92. A "prisoners' claims for injunctive or declaratory relief regarding prison conditions generally become moot when the prisoner transfers to another prison." Owens v. Sec'y, Fla. Dep't of Corr., 602 F. App'x 475, 476 (11th Cir. 2015) (per curiam). Moreover, "Georgia inmates do not have a liberty interest in parole eligibility sufficient to implicate the Due Process Clause." Johnson v. Humphrey, No. 5:12-cv-97-MTT, 2014 WL 6998103, at * 4 n.3 (M.D. Ga. Dec. 10, 2014). Plaintiff's motion to amend his claim for injunctive relief, therefore, is denied as futile.
CONCLUSION
For the reasons explained above, it is recommended that Plaintiff's motion for class certification (ECF No. 67) be denied. His motions for appointment of counsel (ECF No. 79) and leave to interview potential witnesses (ECF No. 80) are denied. His motion to amend his complaint (ECF No. 84) is granted in part and denied in part. Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, within fourteen (14) days after being served with a copy hereof. The district judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, "[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice."
SO ORDERED AND RECOMMENDED, this 11th day of March, 2019.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE