McClarty v. Jackson et al, No. 1:2012cv02317 - Document 10 (N.D. Ga. 2012)

Court Description: ORDER approving and adopting the 5 Non-Final Report and Recommendation as the Opinion and Order of this Court. Accordingly, the Court DISMISSES Plaintiff's claims against Sheriff Theodore Jackson, Deputy Warren, Grievance Officer Christiphor , and Fulton County Board of Commissioners Chairman John Eaves, and ALLOWS TO PROCEED as in any other civil action Plaintiffs claims against Lieutenant Jackson, Sergeant Robinson, and Deputy Fuquasz. Because plaintiff is still able to adequately repr esent his interests without the assistance of counsel, his second motion for appointment of counsel 9 is DENIED. The Court DIRECTS the Clerk to RE-SUBMIT this case to Magistrate Judge Vineyard for further proceedings, including the issuance of an Order regarding service of process. Signed by Judge Richard W. Story on 8/13/12. (cem)

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McClarty v. Jackson et al Doc. 10 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION DEMARIO MCCLARTY, Plaintiff, v. LT. JACKSON; et al., Defendant. :: :: :: :: :: :: :: PRISONER CIVIL RIGHTS 42 U.S.C. § 1983 CIVIL ACTION NO. 1:12-CV-2317-RWS-RGV ORDER This case is before the Court for consideration of the Non-Final Report and Recommendation [5] of Magistrate Judge Russell G. Vineyard, Plaintiff’s objections thereto [8], and Plaintiff’s second motion for appointment of counsel [9]. The Court reviews de novo the portions of the Report and Recommendation to which Plaintiff has objected and reviews for plain error the remaining portions. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983) (per curiam). Plaintiff objects to the dismissal of his claims against Grievance Officer Christiphor and Sheriff Theodore Jackson . However, the Court finds that Magistrate Judge Vineyard’s factual and legal conclusions were correct and that Plaintiff’s objections have no merit. Specifically, Plaintiff cannot state a claim against Officer Christiphor because Plaintiff has no constitutionally-protected liberty interest in a AO 72A (Rev.8/82) Dockets.Justia.com grievance procedure. See Bingham v. Thomas, 654 F.3d 1171, 1177 (11th Cir. 2011) (per curiam); Baker v. Rexroad, 159 F. App’x 61, 62 (11th Cir. 2005) (per curiam). Additionally, Plaintiff fails to allege facts to show that Sheriff Jackson should be held vicariously liable for the assault on Plaintiff. See Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003). After reviewing the Non-Final Report and Recommendation, including those portions to which Plaintiff has not objected, it is received with approval and adopted as the Opinion and Order of this Court. Accordingly, the Court DISMISSES Plaintiff’s claims against Sheriff Theodore Jackson, Deputy Warren, Grievance Officer Christiphor, and Fulton County Board of Commissioners Chairman John Eaves, and ALLOWS TO PROCEED as in any other civil action Plaintiff’s claims against Lieutenant Jackson, Sergeant Robinson, and Deputy Fuquasz. Because plaintiff is still able to adequately represent his interests without the assistance of counsel, his second motion for appointment of counsel [9] is DENIED. See Bass v. Perrin, 170 F.3d 1312, 1320 (11th Cir. 1999); Dean v. Barber, 951 F.2d 1210, 1216 (11th Cir. 1992). 2 AO 72A (Rev.8/82) The Court DIRECTS the Clerk to RE-SUBMIT this case to Magistrate Judge Vineyard for further proceedings, including the issuance of an Order regarding service of process. IT IS SO ORDERED this 13th day of August, 2012. ________________________________ RICHARD W. STORY United States District Judge 3 AO 72A (Rev.8/82)

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