Pasco v. Walker et al

Filing 13

ORDER granting 5 Motion for Leave to Proceed in forma pauperis, granting 9 Motion and directing service upon remaining defendants . Ordered by Judge Richard L. Hodge on 01/08/2007. (Hodge, Richard)

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Pasco v. Walker et al Doc. 13 Case 1:06-cv-00068-WLS-RLH Document 13 Filed 01/08/2007 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA ALBANY DIVISION : : Plaintiff : : VS. : : Officer ANTHONY WALKER, et al., : : Defendants : _____________________________________ ALTURO PASCO, NO. 1:06-cv-68 (WLS) ORDER On June 9, 2006, plaintiff ALTURO PASCO, an inmate at Coastal State Prison in Garden City, Georgia, was ordered to pay an initial partial filing fee of $11.00. In response to the Court's order, plaintiff filed a "Motion to Proceed without Having to Pay the Initial Partial Filing Fee," in which he states he is unable to pay the $11.00. By order dated July 27, 2006, the Court ordered plaintiff to submit a current copy of his prison trust fund account statement. Plaintiff has complied with the Court's order. Upon reconsideration of the Court's June 9, 2006, order, it is therefore ORDERED that payment of the $11.00 initial partial filing fee is hereby waived. However, plaintiff will be required to pay the full filing fee of $350.00 in the manner described later in this order.1 Although plaintiff only had two strikes at the time he filed this lawsuit, he now has four strikes. See Pasco v. Stockfish, 4:06-cv-114-WTM (S.D. Ga. July 14, 2006) (initial filing dismissed as frivolous); Pasco v. LeBlanc, 1:04-cv-98 (WLS) (appeal dismissed as frivolous); Pasco v. Hanes, 1:04-cv-64 (WLS) (M.D. Ga. July 28, 2004) (initial filing dismissed as frivolous); Pasco v. Fields, 1:03-cv-74 (WLS) (M.D. Ga. May 27, 2003) (initial filing dismissed as frivolous). As such, the Eleventh Circuit Court of Appeals has declared plaintiff a "threestriker" for purposes of all future litigation. Pasco v. LeBlanc, Appeal No. 06-12622-A. (Sept. 12, 2006). 1 Dockets.Justia.com Case 1:06-cv-00068-WLS-RLH Document 13 Filed 01/08/2007 Page 2 of 7 In a separate recommendation entered on this date, the undersigned recommended to Judge W. Louis Sands that plaintiff's ineffective advocate, grievance, mail, and April 10, 2005 disciplinary due process claims be dismissed, and that defendants Jennifer Thompson, Lance Montgerard, and Ricky Davis be dismissed from this action. Although the Court has serious reservations about the ultimate validity of plaintiff's remaining claims (disciplinary due process while he was a pretrial detainee, conditions of confinement, retaliation, access to courts, access to counsel, and excessive force) against defendants John Ostrander, Doug McGinley, Sabrina Lewis, Keith Kiger, Anthony Walker, Mark Shirley, Mark Farley, LeBarron Simmons, Jamil Saba, and Dougherty County, Georgia, the Court will nevertheless allow said claims to go forward against said defendants. Accordingly, it is hereby ORDERED that service be made as provided by law upon defendants John Ostrander, Doug McGinley, Sabrina Lewis, Keith Kiger, Anthony Walker, Mark Shirley, Mark Farley, LeBarron Simmons, Jamil Saba, and Dougherty County, Georgia, and that they file a Waiver of Reply, an Answer, or such other response as may be appropriate under Rule 12 of the FEDERAL RULES OF CIVIL PROCEDURE, U.S.C. 1915, and the Prison Litigation Reform Act. It is further ORDERED AND DIRECTED that a copy of this order be served upon plaintiff's custodian, if any. DUTY TO ADVISE OF ADDRESS CHANGE During the pendency of this action, each party shall at all times keep the clerk of this court and all opposing attorneys and/or parties advised of his current address. Failure to promptly advise the Clerk of any change of address may result in the dismissal of a party's pleadings filed herein. 2 Case 1:06-cv-00068-WLS-RLH Document 13 Filed 01/08/2007 Page 3 of 7 DUTY TO PROSECUTE ACTION Plaintiff is advised that he must diligently prosecute his complaint or face the possibility that it will be dismissed under Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute. Defendants are advised that they are expected to diligently defend all allegations made against them and to file timely dispositive motions as hereinafter directed. This matter will be set down for trial when the court determines that discovery has been completed and that all motions have been disposed of or the time for filing dispositive motions has passed. FILING AND SERVICE OF MOTIONS, PLEADINGS, DISCOVERY AND CORRESPONDENCE It is the responsibility of each party to file original motions, pleadings, and correspondence with the Clerk of court; to serve copies of all motions, pleadings, discovery, and correspondence upon opposing parties or counsel for opposing parties if they are represented; and to attach to said original motions, pleadings, and correspondence filed with the Clerk a certificate of service indicating who has been served and where (i.e., at what address), when service was made, and how service was accomplished (i.e., by U.S. Mail, by personal service, etc.). The Clerk of Court will not serve or forward copies of such motions, pleadings, and correspondence on behalf of the parties. DISCOVERY Plaintiff shall not commence discovery until an answer or dispositive motion has been filed on behalf of the defendants from whom discovery is sought by the plaintiff. The defendants shall not commence discovery until such time as an answer or dispositive motion has been filed. Once an answer or dispositive motion has been filed, the parties are authorized to seek discovery from one another as provided in the FEDERAL RULES OF CIVIL PROCEDURE. The deposition of the plaintiff, a state/county prisoner, may be taken at any time during the time period hereinafter set out provided 3 Case 1:06-cv-00068-WLS-RLH Document 13 Filed 01/08/2007 Page 4 of 7 prior arrangements are made with his custodian. Plaintiff is hereby advised that failure to submit to a deposition may result in the dismissal of his lawsuit under Rule 37 of the Federal Rules of Civil Procedure. IT IS HEREBY ORDERED that discovery (including depositions and interrogatories) shall be completed within 90 days of the date of filing of an answer or dispositive motion by the defendant unless an extension is otherwise granted by the court upon a showing of good cause therefor or a protective order is sought by the defendants and granted by the court. This 90-day period shall run separately as to each plaintiff and each defendant beginning on the date of filing of each defendant's answer and/or dispositive motion. The scheduling of a trial may be advanced upon notification from the parties that no further discovery is contemplated or that discovery has been completed prior to the deadline. Discovery materials shall not be filed with the Clerk of Court. No party shall be required to respond to any discovery not directed to him or served upon him by the opposing counsel/part. The undersigned incorporates herein those parts of the Local Rules imposing the following limitations on discovery: except with written permission of the court first obtained, INTERROGATORIES may not exceed 25 to each party, REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS under Rule 34 of the FEDERAL RULES OF CIVIL PROCEDURE may not exceed 10 requests to each party, and REQUESTS FOR ADMISSIONS under Rule 36 of the FEDERAL RULES OF CIVIL PROCEDURE may not exceed 15 requests to each party. No party shall be required to respond to any such requests which exceed these limitations. REQUESTS FOR DISMISSAL AND/OR JUDGMENT Dismissal of this action or requests for judgment will not be considered by the court absent 4 Case 1:06-cv-00068-WLS-RLH Document 13 Filed 01/08/2007 Page 5 of 7 the filing of a separate motion therefor accompanied by a brief/memorandum of law citing supporting authorities. Dispositive motions should be filed at the earliest time possible, but in any event no later than thirty (30) days after the close of discovery unless otherwise directed by the court. DIRECTIONS TO CUSTODIAN OF PLAINTIFF Following the payment of the required initial partial filing fee or the waiving of the payment of same, the Warden of the institution wherein plaintiff is incarcerated, or the Sheriff of any county wherein he is held in custody, and any successor custodians, shall each month cause to be remitted to the Clerk of this court twenty percent (20%) of the preceding month's income credited to plaintiff's account at said institution until the $350.00 filing fee has been paid in full. In accordance with provisions of the Prison Litigation Reform Act, plaintiff's custodian is hereby authorized to forward payments from the prisoner's account to the Clerk of Court each month until the filing fee is paid in full, provided the amount in the account exceeds $10.00. IT IS FURTHER ORDERED AND DIRECTED that collection of monthly payments from plaintiff's trust fund account shall continue until the entire $350.00 has been collected, notwithstanding the dismissal of plaintiff's lawsuit or the granting of judgment against him prior to the collection of the full filing fee. PLAINTIFF'S OBLIGATION TO PAY FILING FEE Pursuant to provisions of the Prison Litigation Reform Act, in the event plaintiff is hereafter released from the custody of the State of Georgia or any county thereof, he shall remain obligated to pay any balance due on the filing fee in this proceeding until said amount has been paid in full; plaintiff shall continue to remit monthly payments as required by the Prison Litigation Reform Act. Collection from the plaintiff of any balance due on the filing fee by any means permitted by law is hereby authorized in the event plaintiff is released from custody and fails to remit payments. In 5 Case 1:06-cv-00068-WLS-RLH Document 13 Filed 01/08/2007 Page 6 of 7 addition, plaintiff's complaint is subject to dismissal if he has the ability to make monthly payments and fails to do so. ELECTION TO PROCEED BEFORE THE UNITED STATES MAGISTRATE JUDGE 28 U.S.C. 636(c)(1) authorizes and empowers full-time magistrate judges to conduct any and all proceedings in a jury or nonjury civil matter and to order the entry of judgment in a case upon the written consent of the parties. If the parties desire for the United States Magistrate Judge to hear this case through trial and the entry of judgment, they may obtain the necessary consent forms from the Clerk of the Court. SO ORDERED, this 8th day of January, 2007. /s/ Richard L. Hodge RICHARD L. HODGE UNITED STATES MAGISTRATE JUDGE NOTICE TO ALL PARTIES PURSUANT TO THE COURT'S ORDER REGARDING DISCOVERY SET OUT ABOVE, NO DISCOVERY SHALL BE PERMITTED IN THIS CASE UNTIL AN ANSWER OR DISPOSITIVE MOTION (e.g., MOTION TO DISMISS, MOTION FOR SUMMARY JUDGMENT, MOTION FOR JUDGMENT ON THE PLEADINGS) HAS BEEN FILED BY THE DEFENDANT(S). PURSUANT TO THE FEDERAL RULES OF CIVIL PROCEDURE, DISCOVERY (DEPOSITIONS, INTERROGATORIES, REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS, REQUESTS FOR ADMISSIONS, 6 Case 1:06-cv-00068-WLS-RLH Document 13 Filed 01/08/2007 Page 7 of 7 ETC., AND RESPONSES THERETO) SHALL NOT BE FILED WITH THE CLERK OF COURT. NOTE THAT THIS IS A CHANGE IN THE PROCEDURE HERETOFORE FOLLOWED IN THIS DISTRICT. DO NOT FILE ANY DISCOVERY WITH THE COURT UNLESS YOU ARE SPECIFICALLY DIRECTED TO DO SO BY THE COURT OR UNLESS FILING IS NECESSARY TO SUPPORT OR CONTEST A MOTION TO COMPEL DISCOVERY, OBJECTION TO DISCOVERY, DISPOSITIVE MOTION, OR SIMILAR MOTION. THE CLERK IS DIRECTED TO RETURN ANY SUBMITTED DISCOVERY TO THE PARTY SUBMITTING IT UNLESS IT IS FILED PURSUANT TO AN ORDER OF THE COURT OR IN SUPPORT OF A MOTION TO COMPEL, OBJECTION TO DISCOVERY, DISPOSITIVE MOTION, OR SIMILAR MOTION. 7

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