Killens v. Sheffield

Opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA

DUBLIN DIVISION

DARRELL D. KILLENS, ) ) Plaintiff, ) ) v. ) CV 319-087 ) SHERIFF LYNN SHEFFIELD; CPT. SID ) ANDREWS; LT. BARRENTINE; and ) SGT. DANIELS, ) ) Defendants.1 ) ________

O R D E R ________ Plaintiff, a pre-trial detainee at Dodge County Jail (“DCJ”) in Eastman, Georgia, is proceeding pro se and in forma pauperis (“IFP”) in this civil rights case. On April 30, 2020, the Court issued a Report and Recommendation (“R&R”) recommending dismissal of all claims except Plaintiff’s excessive force claims against Captain Andrews and Sergeant Daniels. (Doc. no. 17.) On May 26, 2020, Plaintiff objected to the Court’s R&R, which the Court construed as a request to amend and granted. (Doc. nos. 18, 19.) On June 23, 2020, Plaintiff filed an amended complaint, which the Court subsequently screened and issued a new R&R. (See doc. nos. 27, 29-31.) Because Plaintiff filed his amended complaint, the Court VACATES the April 30th R&R. (Doc. no. 15.)

1The Court DIRECTS the CLERK to update the spelling of Defendants’ names in accordance with the caption of this Order, which is consistent with Defendants’ answers. (Doc. nos. 33, 35.) Additionally, on July 15, 2020, Defendants Andrews, Barrentine, and Daniels filed a motion for judgment on the pleadings. (Doc. no 36.) A motion for judgment on the pleadings is dispositive in nature, meaning that the granting of a motion for judgment on the pleadings results in the dismissal of individual claims or an entire action. Plaintiff must respond to the motion to dismiss within fourteen days of service of the motion, and if Plaintiff fails to respond, the motion will be deemed unopposed and granted, resulting in the

dismissal of the claims that are the subject matter of the motion. See Loc. R. 7.5. As a motion for judgment on the pleadings under 12(c) and a motion to dismiss under 12(b)(6) are almost identical in form and relief, courts apply the same legal standard in assessing both motions. See Mobile Telecomms. Techs., LLC v. United Parcel Serv., Inc., 173 F. Supp. 3d 1324, 1327 (N.D. Ga. 2016) (“The legal standard for assessing a motion for judgment on the pleadings is the same as the standard for a motion to dismiss under Rule 12(b)(6).”) (citing Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1370 (11th Cir.

1998)). “When, on a motion to dismiss, matters outside the pleadings are presented to and not excluded by the Court, the normal course is for the Court to determine whether the motion to dismiss should be treated as one for summary judgment and therefore disposed of as provided by Fed. R. Civ. P. 56. Jones v. Auto. Ins. Co., 917 F.2d 1528, 1532 (11th Cir. 1990); see also Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002) (requiring same analysis for consideration of Rule 12(c) motion). To assure Plaintiff’s response is made with fair notice of the requirements of the

Federal Rules of Civil procedure regarding motions for judgment on the pleadings, the Court DIRECTS the CLERK of COURT to attach a copy of Fed. R. Civ. P. 12 and 41 to Plaintiffs service copy of this Order. SO ORDERED this 20th day of July, 2020, at Augusta, Georgia.

BRIAN K. UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OF GEORGIA