Noble v. State of Georgia et al, No. 1:2011cv04227 - Document 18 (N.D. Ga. 2014)
Court Description: OPINION AND ORDER adopting 15 Final Report and Recommendation. This action is DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1). Signed by Judge William S. Duffey, Jr on 4/9/2014. (anc)
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION LORETTA DENISE NOBLE, GDC ID # 1199770, Plaintiff, v. 1:11-cv-4227-WSD KATHY SEABOLT, Warden Defendant. OPINION AND ORDER This matter is before the Court on Magistrate Judge Alan J. Baverman s Final Report and Recommendation [15] ( R&R ) recommending that this action be dismissed pursuant to 28 U.S.C. § 1915A. I. BACKGROUND On November 30, 2011, Plaintiff Loretta Denise Noble ( Plaintiff ), then an inmate at the Pulaski State Prison, filed pro se this action against numerous employees of the Georgia Department of Corrections. In her original Complaint [1], Plaintiff asserted several causes of action for civil rights violations, under 42 U.S.C. § 1983. On September 5, 2012, Magistrate Judge Baverman issued a Non-Final Report and Recommendation [9] finding that Plaintiff s Complaint failed to state a claim upon which relief can be granted. With the exception of Plaintiff s claim of retaliatory transfer to a different prison, the Magistrate Judge concluded that Plaintiff s claims were futile. With respect to the retaliatory transfer claim, the Magistrate Judge found that Plaintiff failed to allege sufficient facts to show a constitutional violation but recognized that Plaintiff could possibly correct the pleading deficiencies in an amended complaint. The Magistrate Judge thus recommended dismissing all of Plaintiff s claims and granting Plaintiff leave to replead her retaliatory transfer claim. On September 28, 2012, the Court adopted the Magistrate Judge s recommendation. (Order [12].) On October 30, 2012, Plaintiff filed her Amended Complaint [13] alleging that Warden Kathy Seabolt ( Defendant ) transferred Plaintiff from Arrendale State Prison to Pulaski State Prison because Plaintiff had exercised her First Amendment right to submit a grievance. Plaintiff alleges that she submitted her grievance to a Ms. Jones on May 19, 2011, and she was transferred on May 26, 2011. Plaintiff s only allegation regarding Defendant is that she sign[ed] and acknowledge[ed] the grievance on May 27, 2011, the day after Plaintiff was transferred. On May 20, 2013, after reviewing Plaintiff s Amended Complaint under 28 U.S.C. § 1915A, the Magistrate Judge issued his R&R finding that Plaintiff failed 2 to state a claim against Defendant because Plaintiff failed to allege any facts showing that Defendant was even aware of Plaintiff s grievance before Plaintiff s transfer. The Magistrate Judge thus recommends that the Amended Complaint be dismissed.1 II. DISCUSSION A. Legal Standard After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject, or modify a magistrate judge s report and recommendation. 28 U.S.C. § 636(b)(1) (Supp. IV 2010); Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam). A district judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. 28 U.S.C. § 636(b)(1). If no party has objected to the report and recommendation, a court conducts only a plain error review of the record. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983) (per curiam). 1 On June 6, 2013, Plaintiff filed a letter with the Clerk s office stating that she is not able to continue this case because she does not have an attorney. Although Plaintiff s letter was docketed as a response to the R&R, the letter does not include any objections to the Magistrate Judge s findings or recommendations. 3 B. Analysis Plaintiff does not object to the Magistrate Judge s finding that the Amended Complaint fails to state a claim for retaliatory transfer under the First Amendment because Defendant is not alleged to have had prior knowledge of Plaintiff s grievance. The Court does not find plain error in this finding. See Douglas v. Yates, 535 F.3d 1316, 1321 (11th Cir. 2008) (holding that retaliatory transfer under the First Amendment requires a causal connection between the retaliatory actions and the adverse effect on speech and that the complaint must therefore allege facts that associate [the defendant] with [the] violation ). The Amended Complaint thus fails to state a claim upon which relief may be granted, and this action is required to be dismissed. See 28 U.S.C. § 1915A(b)(1) (providing that the Court shall dismiss a prisoner s complaint that fails to state a claim upon which relief can be granted ). III. CONCLUSION Accordingly, for the foregoing reasons, IT IS HEREBY ORDERED that Magistrate Judge Alan J. Baverman s Final Report and Recommendation [15] is ADOPTED. This action is DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1). 4 SO ORDERED this 9th day of April, 2014. 5
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