MORRIS v. MORALES et al, No. 1:2013cv00021 - Document 13 (M.D. Ga. 2013)

Court Description: ORDER denying 8 Motion for Preliminary Injunction; denying 8 Motion for TRO; adopting in part and reversing in part Report and Recommendations re 10 Report and Recommendations. The Court does not adopt and reverses the portion of the Order transferring certain claims to the Southern District of Georgia and Remands for further proceedings in accordance with this Order.Ordered by Judge W. Louis Sands on 4/10/13 (wks)
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MORRIS v. MORALES et al Doc. 13 IN TH E U N ITED STATES D ISTRICT COU RT FOR TH E MID D LE D ISTRICT OF GEORGIA ALBAN Y D IVISION ISAAC MORRIS, Plain tiff, v. Warden CEDRIC TAYLOR et al, Defen dan ts. : : : : : : : : : : CASE NO.: 1:13-cv-21 (WLS) ORD ER Before the Court is Un ited States Magistrate J udge Thom as Q. Lan gstaff’s March 18, 20 13 Order an d Recom m en dation in this pro se prison er case again st employees of th e Autry State an d J ohnson State Prison s. (Doc. 10 .) Plain tiff Isaac Morris claims th at th e Defen dan ts violated the Am erican s with Disabilities Act an d were deliberately in differen t to h is serious medical n eeds in violation of the Eigh th Am en dm en t of th e United States Con stitution. (Doc. 1.) J udge Lan gstaff issued the in stan t Order an d Recommen dation on a variety of pretrial motion s. Specifically, the Order an d Recommen dation (1) gran ted Morris’s m otion to proceed in form a pauperis, (2) den ied two motions to appoin t coun sel, (3) den ied a motion for leave to amen d complain t, (4) recommen ded the dism issal of Morris’ m otion for prelim inary injunction or tem porary restraining order, (5) an d tran sferred the claims again st the J ohnson State Prison defen dan ts to the Southern District of Georgia because they were im properly join ed to this lawsuit. Morris timely objected to the tran sfer an d all of the n egative rulin gs. The Court adopts th e Order an d 1 Recom m en dation with on e exception: the Court m ust reverse an d rem an d the portion of th e order tran sferrin g claims to the Southern District of Georgia. D ISCU SSION Th e Court applies two standards of review to th ese objections. First, un der th e Federal Rules of Civil Procedure, a district judge may con sider timely objection s to a magistrate judge’s order on n ondispositive pretrial matters an d may modify or set aside an y portion th ereof th at is clearly erron eous or con trary to law. Fed. R. Civ. P. 72(a); see also 28 U.S.C. § 636(b)(1)(A) (perm itting district judge to reconsider m agistrate judge’s order on n ondispositive pretrial m atter if order is con trary to law or clearly erron eous). “Clear error is a h igh ly deferen tial stan dard of review.” Saun ders v. Em ory Healthcare, In c., No. 1:0 7-CV-0 0 282-WSD-GGB, 20 0 8 WL 513340 , *3 (N.D. Ga. Feb. 22 20 0 8) (“Th e stan dard for overturn in g a Magistrate J udge’s order is ‘a very difficult on e to meet.’”). “[A] findin g is ‘clearly erron eous’ when . . . the reviewin g court on the en tire eviden ce is left with the defin ite an d firm con viction that a mistake h as been com m itted.” Id. On th e other h an d, the court reviews recommen dation s on dispositive issues de n ovo. 28 U.S.C. § 636(b)(1). “As the use of the phrase de n ovo im plies, the district court's consideration . . . must be in dependen t an d based upon the record before the court.” LoConte v. Dugger, 847 F.2d 745, 750 (11th Cir. 1988). I. Tra n s fe r o f Cla im s to th e So u th e rn Dis trict o f Ge o rgia Morris claims the magistrate judge erred by tran sferrin g certain claims to th e South ern District of Georgia. The Court agrees.1 As an initial m atter, there is som e 1 Although a transferor court loses jurisdiction over the case when it is physically transferred, Roofing & Sheet Metal Serv s., Inc. v . La Quinta Motor Inns, Inc., 689 F.2d 982, 988 n.10 (11th Cir. 1982), a review of the Southern District of Georgia’s PACER system reflects that that Court has not docketed this case. 2 am biguity about whether th e pretrial authority of 28 U.S.C. § 636 applies to a m agistrate judge’s tran sfer of ven ue. Ham lett v. W idtzler, No. CV 20 11-310 6(CBA)(MDG), 20 13 WL 1338859, at *1 n .1 (E.D.N.Y. Mar. 8, 20 13) (“Courts disagree on wh eth er m otions to tran sfer are with in th e pretrial referen ce authority of magistrate judges.”). Th erefore, the proper stan dard of review is somewhat un clear. Even under a more deferen tial stan dard, however, the Court must reverse an d rem an d. In the Order, the magistrate judge foun d Morris alleged two distin ct claims from in ciden ts in the J ohn son State an d Autry State Prisons. Reason in g th at Morris im properly join ed th e claims un der Federal Rule of Civil Procedure 20 , the magistrate judge sua spon te severed the J ohnson State Prison claims an d tran sferred them to the South ern District of Georgia. He foun d they should be severed because th e statute of lim itation s m igh t bar som e of th e claim s if they were dism issed. Morris essentially objects to th e merits of th is determin ation . The Court reverses for a differen t reason . Before tran sferrin g a case un der 28 U.S.C. § 140 4, a judge must give th e parties n otice an d opportun ity to be heard. Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1336 (11th Cir. 20 11); see also Nalls v. Colem an Low Fed. Inst., 440 F. App’x 70 4, 70 6 (11th Cir. 20 11). “[T]h e judge should, at m in im um , issue an order to sh ow cause why th e case should n ot be tran sferred, an d th ereby afford the parties an opportun ity to state th eir reason s.” Id. (quoting Starnes v. McGuire, 512 F.2d 918, 934 (D.C. Cir. 1974)). Both Parties— in cludin g the Defen dan ts—must be given a ch an ce to oppose a tran sfer. See Costlow v. W eeks, 790 F.2d 1486, 1488 (9th Cir. 1986); see also Tazoe, 631 F.3d at 1336– 37 The Court therefore retains jurisdiction. Heard v . Tanner, No. 5:11-cv-30 3 (CAR), 20 11 WL 40 97517, at *1 (M.D. Ga. Sept. 14, 20 11). 3 (h oldin g district court abused its discretion in sua spon te dismissing case under doctrine of forum non conveniens before plain tiff perfected service).2 In this case, the magistrate judge sua spon te tran sferred claims again st the J ohn son State Prison defen dan ts to the Southern District of Georgia without givin g Morris or the Defen dan ts an opportunity to oppose such a tran sfer. (See Docket.) Accordin g to th e docket, th e Defen dan ts h ave n ot been served. Accordin gly, th is portion of th e Order m ust be, an d is, REVERSED . See Tazoe, 631 at 1336 (n oting th at it is abuse of discretion to tran sfer case with out n otice an d opportun ity to be heard). II. Mo tio n s to Ap p o in t Co u n s e l Morris also objects to the m agistrate judge’s order denying h is m otion s to appoin t coun sel. The Court reviews a magistrate judge’s order den yin g the appoin tmen t of coun sel for clear error. See Delgiudice v. Evans, No. 5:12-cv-74 (CAR), 20 13 WL 1294469, at *1 (M.D. Ga. Mar. 28, 20 13). Here, the Court is n ot persuaded th at J udge Lan gstaff’s den ial of Plain tiff’s request for coun sel was clear error or con trary to law. As J udge Lan gstaff n oted, appoin tmen t of counsel in a civil case is n ot a con stitution al right. Fow ler v. Jam es, 899 F.2d 10 88, 10 96 (11th Cir. 1990 ). “The appoin tm en t of coun sel is in stead a privilege that is justified on ly by exceptional circumstan ces[.]” McCall v. Cook, 495 F. App’x 29, 31 (11th Cir. 20 12) (quoting Poole v. Lam bert, 819 F.2d 10 25, 10 28 (11th Cir. 1987)). Exception al circumstan ces exist wh ere th e facts an d legal issues are so complex as to require the assistan ce of coun sel. Jackon v. Fla. Dept. of Corr., 491 F. App’x 129, 131 (11th Cir. 20 12) (citin g Fow ler, 899 F.2d at 10 96). In this case, nothing suggests th at th e case is unusually com plex or novel as to require counsel. Additionally, this Court’s review of the magistrate judge’s Order is not enough to afford due process. See Starnes v . McGuire, 512 F.2d 918, 934 n.19 (D.C. Cir. 1974) (“[A]n opportunity to respond in the form of a m otion to the district judge to stay transfer should not be deem ed an adequate substitute for notice and an opportunity to respond before entry of the order.”). 2 4 Morris’ purported inability to access a law library does not establish, with out more, an exceptional circum stance.3 See Zaken v. Kelley, 370 F. App’x 982, 986 (11th Cir. 20 10 ). Th erefore, th e Court does n ot disturb J udge Lan gstaff’s Order. Accordin gly, Plaintiff’s objection is OVERRU LED . III. Mo tio n fo r Le a ve to Am e n d Co m p la in t Th e Court also disagrees th at J udge Lan gstaff erred wh en den yin g Morris’ motion to amen d. “As a gen eral matter, [a]n amen ded pleadin g supersedes th e form er pleading; the original pleading is aban doned by th e amen dm en t, an d is no longer a part of the pleader’s avermen ts again st his adversary.” Pin tando v. Miam i-Dade Hous. Auth., 50 1 F.3d 1241, 1243 (11th Cir. 20 0 7) (citation om itted). J udge Lan gstaff’s order directin g Morris to recast h is com plain t m ooted h is motion to am en d. Accordingly, h is objection is OVERRU LED . IV. D e n ia l o f Pre lim in a ry In ju n ctio n Alon g with h is complain t, Morris filed a pre-service “Order to Show Cause for an Prelim inary [sic] In junction and a Tem porary Restraining Order.” (Doc. 8 .) Th e Court reviews the den ial of this motion de novo. Jeffrey S. by Earn est S. v. State Bd. of Educ. of State of Ga., 896 F.2d 50 7, 512– 13 (11th Cir. 1990 ). After an in depen den t review of the record, the Court agrees th is motion should be den ied. To obtain a TRO or a prelim in ary in jun ction , a m ovan t must dem on strate that (1) th ere is a substan tial likelihood of success on th e merits; (2) the prelim in ary in jun ction is n ecessary to preven t irreparable in jury; (3) the threaten ed in jury outweighs the harm th e in jun ction would cause to the n on m ovan t; an d (4) the prelim in ary in jun ction would In any event, Morris’ alleged inability to do legal research is belied by the legal citations he provides in all of his filings. 3 5 n ot be adverse to the public in terest. Schiavo ex rel. Schindler v. Schiavo, 40 3 F.3d 1223, 1225– 26 (11th Cir. 20 0 5); Parker v. State Bd. of Pardon s & Paroles, 275 F.3d 10 32, 10 34– 35 (11th Cir. 20 0 1) Morris has failed to establish a substan tial likelihood of success on th e merits. Th is is so because “any m otion or suit for a traditional injunction must be predicated upon a cause of action . . . regardin g wh ich a plain tiff m ust sh ow a likelihood or actuality of success on the m erits.” Klay v. United Healthgroup, In c., 376 F.3d 10 92, 10 97 (11th Cir. 20 0 4). Accordin gly, the Court can n ot gran t a prelim in ary in jun ction when the m ovan t fails to even state a claim . In this case, Morris seeks a prelim in ary in jun ction because th e defen dan ts are allegedly deliberately in differen t to h is serious m edical n eed. To m ake a claim of deliberate in differen ce, Morris h ad to allege th at th e prison officials (1) had subjective knowledge of a risk of serious harm , (2) disregarded th at risk, an d (3) by conduct th at is m ore than mere n egligen ce. Bingham v. Thom as, 654 F.3d 1171, 1176 (11th Cir. 20 11). In his initial com plaint an d m otion, Morris did not allege, an d did not provide an y facts sh owin g, that the jail officials acted with more th an mere n egligen ce. J udge Lan gstaff, in fact, ordered Morris to recast his complain t, presum ably because the precise n ature of his claims was unclear. The facts are simply not developed en ough to warrant a TRO or injunctive relief. Th erefore, Morris’ objection relatin g to his request for a TRO or prelim in ary injunction is OVERRU LED , an d h is m otion is D EN IED without prejudice. CON CLU SION Based on the foregoin g, J udge Lan gstaff’s March 18, 20 13 Order an d Recom m endation is ACCEPTED in pa rt an d REVERSED in p art, as follows: The 6 Court ACCEPTS, AD OPTS an d makes Order of the Court the Order an d Recom m endation as it applies to the m otion for a prelim inary injunction (Doc. 8 ), the motion to appoin t coun sel (Doc. 7), the motion to amen d (Doc. 6), the motion to proceed in form a pauperis (Doc. 2), an d th e order requirin g Morris to recast his complain t. The Court D OES N OT AD OPT an d REVERSES th e portion of th e Order tran sferrin g certain claims to the Southern District of Georgia an d REMAND S for further proceedin gs in accordan ce with th is Order. Morris’ objection regardin g th e tran sfer is SU STAIN ED an d the objection s as to the other portions are OVERRU LED . SO ORD ERED , this 10 th day of April 20 13. / s/ W. Louis Sands _ TH E H ON ORABLE W . LOU IS SAN D S, U N ITED STATES D ISTRICT COU RT 7