Marshall v. G.D.C.I. Food Service, et. al., No. 6:2017cv00117 - Document 13 (S.D. Ga. 2018)
Court Description: ORDER granting 10 Motion for Reconsideration and the 8 Dismissal Order is vacated. It is further ordered the 5 Report and Recommendation denying Plaintiff's IFP motion is vacated. It is further ordered that Plaintiff is granted leave to amend his complaint as to both of his substantive claims by the close of business on Thursday, May 17, 2018. Signed by Chief Judge J. Randal Hall on 04/26/2018. (jlh) Modified on 4/26/2018 (jlh).
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Marshall v. G.D.C.I. Food Service, et. al. Doc. 13 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA STATESBORO DIVISION JAMMIE L. MARSHALL, * * Plaintiff, * * V. * CV 617-117 * G.D.C.I. FOOD SERVICE, * * Defendant. * ORDER Plaintiff is presently confined at Johnson State Prison in Wrightsville, Georgia. Plaintiff, proceeding pro se, initiated the present action with the filing of a complaint pursuant to 42 U.S.C. § 1983 regarding events allegedly occurring while he was an inmate at Rogers State Prison (''RSP") in Reidsville, Georgia. (Doc. 1; see also Doc. 7, SI 5.) alleged that: (i) operating while he his left hand improperly-maintained was on work detail In his complaint. Plaintiff was seriously injured equipment at RSP on at or a canning about while plant December 22, 2015; and (ii) a doctor took an unreasonable amount of time to review his records in connection with his aforementioned injury. (See Doc. 1, at 3-5, 8.) Plaintiff subsequently filed a motion to proceed in forma pauperis. On December 5, 2017, (Doc. 3.) the United States Magistrate Judge conducted an initial review of Plaintiff's pleadings and other filings and entered a report and recommendation C'R&R") wherein Dockets.Justia.com he recommended that Plaintiff's complaint be dismissed failure to state a claim and that this case be closed. 5.) for (Doc. Indeed, with regards to Plaintiff's allegations concerning improperly-maintained Magistrate Judge regarding the equipment concluded at that: the (i) canning plant, Plaintiff's improperly-maintained the allegations equipment was more appropriately considered a ''negligence-based tort" rather than a claim under Section 1983; (ii) Plaintiff had failed to indicate whether Defendant private corporation Department of G.D.C.I. (as Food Service opposed Corrections" to insulated "an ("G.D.C.I") arm from of suit was a the Georgia under Section 1983 by the Eleventh Amendment); and (iii) even if G.D.C.I, was a private corporation subject to suit. Plaintiff's allegations against G.D.C.I, appeared to be based solely upon theories of respondeat superior or vicarious cognizable under Section 1983). liability (which (Id. at 4-6.) are non- Further, with regards to Plaintiff's allegations concerning a doctor's delayed review of that: his medical records, (i) allegations Plaintiff in his the Magistrate Judge failed to complaint make to concluded sufficient demonstrate factual deliberate indifference to his medical needs; and (ii) Plaintiff had failed to name the relevant doctor as a defendant in this case and/or explain how (in)actions. G.D.C.I, could (Id. at 6-9.) be held liable for that doctor's For these reasons, the Magistrate Judge also pauperis. On denied Plaintiff's motion to proceed in forma (Id. at 10.) December 21, 2017, objections to the R&R. the Court (Doc. 7.) received Plaintiff's Therein, Plaintiff asserted his belief that he had set forth sufficient factual allegations to survive admitted facts dismissal. that when (Id. SI 3.) Further, he ''possibly inadvertently preparing his final draft while omitted of the Plaintiff some of the complaint," he asserted it was error for the Magistrate Judge to not grant him leave to amend his complaint "to add the omitted facts." 4; see also factual SISI statements Plaintiff plant id. had 5-16 (attempting in support of advised "prison detail maintenance forth claims, including officers" and that "canning issues with the machinery that caused his injuries).) Plaintiff to numerous additional regarding simply on set occasions" further stated personnel his to (Id. SI that he "was under name the part of the impression the Department of that he Corrections was to which he was assigned to as a defendant in his complaint" and, similarly, that "refer[ring] to the doctor's actions and inactions" was sufficient to have him included as a defendant in this action.^ (Id. SISI 17-18.) After conducting an independent and de nova review of the entire record, this Court adopted the Magistrate Judge's R&R as ^ Notably, while Plaintiff only specifically named G.D.C.I, in the caption of his complaint, he did style the case as "Jammie L. Marshall v. G.D.C.I., et al." (See Doc. 1, at 1 (emphasis added).) 3 its own opinion on January 23, 2018. Order").) Accordingly, the (Doc. 8 (the ''Dismissal Court dismissed Plaintiff's complaint for failure to state a claim and closed this case. (Id.) On February 5, 2018, the Court received Plaintiff's instant motion seeking reconsideration of 10.) the Dismissal Order. (Doc. Therein, Plaintiff requests that he be allowed to submit an amended complaint that "correct[s] any and all failed claims . . . [and] include[s] all names that the Magistrate Judge has deemed that complaint." his Plaintiff (Id.) proposed has failed to mentioned [sic] in [his] Plaintiff, however, did not attach a copy of amended complaint to his motion seeking reconsideration. Here, the Court concludes that the aforementioned defects identified in amendment. Plaintiff's claims Accordingly, the may Court have was been curable obligated to via give Plaintiff at least one opportunity to cure before dismissing his action with prejudice for failure to state a claim. See Carter V. HSBC Mortgage Servs., Inc., 622 F. App'x 783, 786 (11th Cir. 2015) ("A pro se plaintiff . . . must be given at least one chance to dismisses amend the the action complaint with before prejudice, at the district least where carefully drafted complaint might state a claim. even after where the the plaintiff district court does not enters 4 seek final leave to court a more This is true amend judgment." until (internal quotations and emphasis omitted) (citing Bank v, Pitt» 1108, 1112 Daewoo 2002) (11th Heavy (en Cir. Indus. 1991), Am. banc))). overruled Corp., 314 Therefore, in F.3d the part 541, Court by 542 will 928 F.2d Wagner (11th v. Cir. vacate the Dismissal Order and grant Plaintiff the opportunity to amend his complaint. Accordingly, upon the foregoing and due consideration, IT IS HEREBY (doc. 10) VACATED. ORDERED that is GRANTED IT IS Plaintiff's and FURTHER the motion for Dismissal ORDERED that reconsideration Order the (doc. portion 8) of is the Magistrate Judge's R&R (doc. 5) in which the Magistrate Judge denied Plaintiff's motion to proceed in forma pauperis in this matter GRANTED is VACATED. LEAVE TO substantive claims. IT IS AMEND FURTHER his ORDERED complaint that as to Plaintiff both of is his If Plaintiff wishes to proceed forward with this case, he SHALL file his forthcoming amended complaint by the close of business on Thursday, May 17, 2018; Plaintiff's failure to file his forthcoming amended complaint within this time-period as directed may result in the dismissal action with prejudice without further notice.^ of this Upon the timely ^ The amended complaint must be typed or printed legibly so that the Court may discern Plaintiff's claims, and it will supersede and replace in its entirety the previous pleadings filed by Plaintiff; no portion of any prior pleading shall be incorporated into his amended complaint by reference. See Hoefling V. City of Miami, 811 F.3d 1271, 1277 (11th Cir, 2016); Lowery v. Alabama Power Co., 483 F.3d 1184, 1219 (11th Cir. 2007) ("an amended complaint supersedes the initial complaint and becomes the operative pleading in the case"). While Plaintiff may attach exhibits to his amended complaint, he shall not incorporate them by reference as a means of providing the factual basis for his pleading. For example. Plaintiff should not simply state, "see 5 filing of Plaintiff's forthcoming amended complaint, the Magistrate Judge is DIRECTED to perform a frivolity review of the amended complaint, consider the merits of Plaintiff's motion to proceed in foxma pauperis in light thereof, and enter further orders herein as appropriate to move at Georgia, this case towards resolution. ORDER ENTERED Augusta, this day of April, 2018. )AL HALL, CHIEF JUDGE ID STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA attached documents," as the Court will not independently examine exhibits that Plaintiff does not specifically reference (by the exhibit's page niamber) in his amended complaint. Moreover, Plaintiff shall submit only one amended complaint in accordance with the terms of this Order. Therefore, Plaintiff shall state in the single amended complaint filed in accordance with the terms of this Order all claims that he wishes the Court to consider as a basis for awarding the relief sought. Finally, Plaintiff shall identify by name - in both the case caption and the relevant paragraphs of the body of his complaint - each and every defendant against whom he is asserting claims. 6
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