Chipman v. Conway et al, No. 1:2015cv02810 - Document 22 (N.D. Ga. 2016)
Court Description: ORDER AND OPINION adopting the 17 Magistrate's Report and Recommendations as the opinion of the Court and denying 4 Plaintiff's motion for preliminary injunction and TRO. Plaintiffs motion to amend the complaint 21 is granted, such th at the instant action shall proceed on Plaintiffs First and Fourteenth Amendment free exercise and equal protection claims. Plaintiffs motion for appointment of counsel 20 is denied. The Clerk is directed to send USM 285 forms and summons for all d efendants. Plaintiff is directed to complete service forms and return to Clerk within 20 days from entry date of this Order. The Clerk is directed to resubmit if Plaintiff fails to comply. Upon receipt of forms, the Clerk is DIRECTED to prepare a se rvice waiver package for each Defendant. In the event a Defendant does not return the Waiver of Service form to the Clerk of Court within 35 days following the date the service waiver package was mailed, the Clerk is DIRECTED to prepare and transmit to the U.S. Marshal's Service a service package for each Defendant who failed to waive service. Signed by Judge Leigh Martin May on 2/24/16. (ddm)
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Chipman v. Conway et al Doc. 22 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION DARREN JAMAINE CHIPMAN, Inmate No. 99449886, PISONER CIVIL RIGHTS Plaintif, 42 U.S.C. § 1983 v. CIVIL ACTION NO. 1: l 5-CV-2810-LMM-JSA R.L. (BUTCH) CONWAY; MIKE BOYD; DON PD; J. NIX; S. HAMILTON; LUCAS, Deendants. ORDER AND OPINION The matter is beore the Court on: (1) Plaintiffs letter, construed by the Clerk as a motion or preliminary injunction and temporary restraining order ("TRO") [Doc. 4]; the Magistrate Judge's Report and Recommendation ("R&R"), in which the Magistrate Judge recommends denying the motion or preliminary injunction and TRO [Doc. 17]; (3) Plaintiffs objections [Doc. 19]; (4) Plaintiffs motion to appoint counsel [Doc. 20]; and (5) Plaintiffs motion or an extension of time to respond and to amend the complaint [Doc. 21]. I. Procedural History Plaintif iled this pro se civil rights action on August 7, 2015, and simultaneously iled the letter that the Clerk construed as a motion or preliminary A072A (Rev.8/82) Dockets.Justia.com injunction and TRO. (Docs. 1, 4). On October 28, 2015, Magistrate Judge Anand issued a rivolity R&R, recommended that Plaintif be allowed to proceed on Religious Land Use and Institutionalized Persons Act ("LUIPA") claims or injunctive relief and on First and Fourteenth Amendment ree exercise claims, but that Plaintiffs claim or damages under RLUIPA be dismissed. (Doc. 11). Plaintif did not ile any objections to the R&R, and this Court adopted it on November 17, 2015. (Doc. 14). The next day Magistrate Judge Anand issued a service order instructing Plaintif to complete service orms and retun those orms (Doc. 15). to the Clerk within twenty (20) days. As of February 23, 2016, Plaintif has not complied with those instructions. On December 22, 2016, Magistrate Judge Anand entered another R&R, this time recommending that Plaintiffs motion or a preliminary injunction and TRO be denied. (Doc. 17). Thereater, on January 4, 2016, Plaintif iled a motion or extension of time to respond, and objections, to the October 28, 2015, rivolity R&R that this Court already had adopted.1 1 (Docs. 19, 21). At the same time Although the docket indicates that Plaintif was objecting to the R&R recommending denial of the preliminary injunction and TRO, it is clear ater reviewing those objections that Plaintif instead seeks to object to the rivolity R&R. (Doc. 19). 2 A072A (Rev.8/82) Plaintif iled a motion to amend the complaint and a second motion to appoint counsel. (Docs. 20, 21). Plaintiffs motion or an extension of time to respond to the original R&R [Doc. 21] is hereby GANTED nunc pro tune. The Court will consider the response [Doc. 21], Petitioner's objections [Doc. 19], and Petitioner's motion to amend [Doc. 21]. II. Discussion A. Claims Plaintif complains that although Magistrate Judge Anand construed his claims under LUIPA, he does not wish to proceed under LUIPA. (Doc. 19 at 1; Doc. 21 at 2). Plaintif should be allowed to withdraw these claims. Plaintif also wishes to raise a claim or violation of his equal protection rights. (Doc. 21 at 2). In the rivolity R&R, Magistrate Judge Anand mentioned the Equal Protection Clause of the Fourteenth Amendment [see Doc. 11 at 7] and discussed that, inter alia, Plaintiffs allegations that "although Christian inmates are allowed to hold services twice a week, Muslim inmates only have held services twice a month at most, and on wrong days[,]" stated "religious claims" under the First and Fourteenth Amendments. (Doc. 11 at 10). Because Magistrate Judge 3 A072A (Rev.8/82) Anand did not explicitly state that Plaintif could proceed on an equal protection claim, however, this Court will discuss the issue. To state an equal protection claim, a prisoner must show that "he is similarly situated with other prisoners who received more avorable treatment; and his discriminatory treatment was based on some constitutionally protected interest." See Jones v. Ray, 279 F.3d 944, 946-47 (11th Cir. 2001). Similar to Plaintiffs ree exercise claims, Plaintif essentially argues that Muslim inmates "are not aforded an opportunity to observe their faith comparable to that afforded ellow inmates who adhere to diferent precepts[,]" see Saleem v. Evans, 866 F .2d 1313, 1317-18 (11th Cir. 1989), and because at this stage of the proceedings the Court does not know what, if any, justiication the Gwinnett County Jail might provide or the diference, Plaintif has stated an equal protection claim. B. Motion or pp intment of Counsel o Plaintif also has iled a second motion to appoint counsel [Doc. 20]. Magistrate Judge Anand denied Plaintiffs irst motion or appointment of counsel [Doc. 3] ater inding that the issues in this case are not overly complex. (Doc. 8). Plaintif provides almost the same reasons or seeking counsel as he did the irst time, that is, he is unable to aford counsel, the issues in this case are complex, he 4 A072A (Rev.8/82) has limited access to the law library and limited knowledge of the law, and that the trial in this case will involve conlicting testimony. (Id.). As nothing has changed since Plaintif's irst motion for counsel was denied, this motion also should be denied. As Magistrate Judge Anand indicated, however, "[i]f the Court determines, at a later point in the proceedings, that Plaintif requires appointed counsel, it will sua sponte reconsider Plaintiff's request." (Doc. 8 at 3). C. Preliminay Injunction/TRO Because Plaintiff's objections pertain solely to the rivolity R&R and Plaintif does not object to the R&R presently beore the Court [Doc. 17], in accordance with 28 U.S.C. § 636(b)(l) and Rule 72 of the Federal Rules of Civil Procedure, the Court has reviewed the Magistrate Judge's R&R or clear error and inds none. III. Conclusion For the oregoing reasons, The Court ADOPTS the Magistrate Judge's R&R [Doc. 17] as the opinion of this Court. For the reasons stated in the Magistrate Judge's R&R, Plaintiff's motion or preliminary injunction and TRO [Doc. 4] are DENIED. 5 A072A (Rev.8/82) IT IS FURTHER ORDERED that Plaintiffs motion to amend the complaint [Doc. 21] is GANTED, such that the instant action shall proceed on Plaintiffs First and Fourteenth Amendment ree exercise and equal protection claims. IT IS FURTHER ORDERED that Plaintiffs motion or appointment of counsel [Doc. 20] is DENIED. IV. Service The Court shall provide Plaintif with one more chance to comply with the Magistrate Judge's service instructions set orth in his November 18, 2015, Order [Doc. 15]. Speciically, the Clerk of Court is DIRECTED to send Plaintif a USM 285 orm and summons or all Deendants. Plaintif is DIRECTED to complete a USM 285 orm and summons or each Deendant and retun them to the Clerk within twenty (20) days rom the date this Order is entered. The Court warns Plaintif that ailure to comply in a timely manner could result in the dismissal of this action. The Clerk is DIRECTED to resubmit this action to the undersigned if Plaintif ails to comply. Upon receipt of the orms, the Clerk is DIRECTED to prepare a service waiver package or each Deendant. The service waiver package must include 6 A072A (Rev.8/82) two (2) Notices of Lawsuit and Request or Waiver of Service of Summons (prepared by the Clerk), two (2) Waiver of Service of Summons orms (prepared by the Clerk), an envelope addressed to the Clerk with adequate irst-class postage or each Deendant's use in returning the waiver orm, one (1) copy of the complaint, and one (1) copy of this Order. Upon completion of the service waiver package, the Clerk is DIRECTED to complete the lower portion of the Notice of Lawsuit and Request or Waiver orm and mail the service waiver packages to each Deendant. Deendants have a duty to avoid unnecessary costs of serving the summons. If any Deendant ails to comply with the request or waiver of service, that Deendant must bear the costs of personal service unless good cause can be shown or ailure to retun the Waiver of Service orm. In the event that any Deendant does not return an executed Waiver of Service orm to the Clerk of Court within thirty-ive (35) days ollowing the date the service waiver package is mailed, the Clerk is DIRECTED to prepare and transmit to the U.S. Marshal's Service a service package or that Deendant. The service package must include the USM 285 orm, the summons, and one (1) copy of the complaint. Upon receipt of the service package(s), the U.S. Marshal's 7 A072A (Rev.8/82) Service is DIRECTED to personally serve that Deendant in accordance with the requirements of Rules 4(i)(2)(A) and 4(i)(2)(B) of the Federal Rules of Civil Procedure. The executed waiver orm or the completed USM 285 orm shall be iled with the Clerk. Plaintif is DIRECTED to serve upon Deendants or their counsel a copy of every additional pleading or other document which is iled with the Clerk of the Court. Each pleading or other document filed with the Clerk shall include a certificate stating the date on which an accurate copy of that paper was mailed to Deendants or their counsel. This Court shall disregard any submitted papers which have not been properly iled with the Clerk or which do not include a certiicate of service. Plaintif is also REQUIRED to KEEP the Court and Deendants advised of his current address at all times during the pendency of this action. Plaintif is admonished that the failure to do so may result in the dismissal of this action. 8 A072A (Rev.8/82) Finally, prisoner civil rights cases are assigned to a zero-month discovery track. If any party determines that discovery is required, that paty must, within thirty days ater the irst appearance of a Deendant by answer, ile a motion requesting a discovery period. IT IS SO ORDERED this 24st day of February, 2016. NITED STATES DISTICT JUDGE 9 A072A (Rev.8/82)
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