SKINNER v. SPROUL et al

Filing 56

ORDER denying 28 MOTION for Leave to Depose Third Party, granting 30 MOTION to Amend/Correct 1 Complaint, denying 22 MOTION for Default Judgment, granting 12 MOTION to Amend/Correct 1 Complain t, denying 29 MOTION for Physical Examination, denying 41 MOTION for Extension of Time to Complete Discovery; REPORT AND RECOMMENDATION re 12 MOTION to Amend/Correct 1 Complaint; ORDER Directing Service re 30 MOTION to Amend/Correct 1 Complaint, 12 MOTION to Amend/Correct 1 Complaint. Plaintiff's motion for default judgment and discovery motions are denied. Plaintiff's motions to a mend are granted but it is recommended that the previously dismissed claims and Plaintiff's state law claim for "intentional misconduct" be dismissed. Service is directed as to Officer Tyrone Griffin, Officer Christian, Officer Gregor y Stone and Nurse Watisha Williams. The currently served defendants shall have fourteen days within which to file or amend their dispositive motions if they do not seek additional time for discovery. Ordered by US MAGISTRATE JUDGE STEPHEN HYLES on 6/30/2015. (AGH)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ALBANY DIVISION
MANASSEH ROYDREGO SKINNER,
Plaintiff,
v.
KEVIN SPROUL, et al.,
Defendants.
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CASE NO. 1:14-CV-174-WLS-MSH

ORDER AND
REPORT AND RECOMMENDATION
Presently pending before the Court are Plaintiff’s motions to amend (ECF Nos. 12,
30), motion for a default judgment (ECF No. 22), motion for leave to depose a third party
(ECF No. 28), motion for a physical examination (ECF No. 29), and motion for an
extension of time to complete discovery (ECF No. 41). For the reasons explained below,
Plaintiff’s motions to amend are granted and service is ordered on those parties not
previously identified or served. It is recommended, however, that several previously
dismissed claims reasserted in the Amended Complaint be again dismissed. Plaintiff’s
motion to depose a third party, motion for a physical examination, and motion for an
extension of time to complete discovery are denied.
BACKGROUND
The present case arises out of an alleged use of excessive force at the Dougherty
County Jail. In his Complaint, Plaintiff alleges that he was taken from his cell on
October 17, 2014, and advised that a judge had issued an order requiring him to provide a

sample of his DNA. Plaintiff refused to comply, citing his Fifth Amendment right
against self-incrimination. He claims that various officers and medical staff then took a
DNA sample by force and assaulted him during and after taking the sample. Plaintiff
further alleges that he was denied medical treatment for his injuries and filed several
grievances concerning these events to which the grievance officer refused to issue a
response.
After a preliminary review of his Complaint, Plaintiff’s Fourth and Fourteenth
Amendment Claims against Detective John Doe, Sergeant Hawkins, Investigator Dice,
Lt. LeFrancois, Nurse Williams, Officer Cross, Officer Owens, and Officer Handle for
excessive force in taking the DNA sample were allowed to proceed. Likewise, his claims
under those amendments against Major Lewis, Captain Collier, Corporal Wilson,
Corporal Hunt, Corporal Bryant, Deputy Cruz (formerly Adams), and Deputy Goree for
failure to intervene were allowed to proceed. While Plaintiff’s claims against Detective
John Doe were allowed to proceed, his claims against other unidentified “unnamed
officers” were dismissed. Additionally, his Fourteenth Amendment claims for a denial of
medical care were allowed to proceed against Corporal Hunt, Officer Handle, Nurse
Williams, and Nurse Montgerard.
Plaintiff filed a motion to amend on January 5, 2015 in which he identifies his
John Doe defendants as Albany Police Department Gang Task Force officers Charlie
Roberts and Tyrone Griffin and Dougherty County Jail officers Christian and Gregory
Stone.

(ECF No. 12.)

He also therein identifies two Nurse Williams—one as an

employee of the Dougherty County Jail and one an employee of Phoebe Putney
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Memorial Hospital. Am. Compl. 1-2, ECF No. 12-2. On March 26, 2015, Plaintiff filed
a second motion to amend in which he seeks to clarify that the person previously
identified as Nurse W. Williams is Watisha Williams who works at “Lily Pad.” Second
Mot. for Leave to Am. 1, ECF No. 30. Plaintiff has also filed a motion for default
judgment against all defendants (ECF No. 22) and several discovery motions (ECF Nos.
28, 29, 41). These motions are now ripe for review.
DISCUSSION
I.

Motions to Amend
Plaintiff currently has two motions to amend pending. His first motion to amend

was filed in this Court on January 5, 2015, but was signed by Plaintiff on December 19,
2014. Mot. for Leave to Am. 2, ECF No. 12. This is within twenty-one days of service
and is consequently a motion to amend as a matter of course under Federal Rule of Civil
Procedure 15(a)(1). Plaintiff’s first motion to amend is thus granted.
His second motion to amend seeks to clarify the name of a defendant formerly
identified as “W. Williams.” Second Mot. for Leave to Am. 1. Specifically, Plaintiff
states that W. Williams is Watisha Williams who is employed at Lily Pad, not Phoebe
Putney. Plaintiff sought agreement from opposing counsel for this amendment. See
Second Mot. for Leave to Am. Exs. A-D, ECF No. 30-1. Opposing counsel filed written
consent to Plaintiff’s proposed amendment. Second Mot. for Leave to Am. Ex. D; Letter,
Mar. 23, 2015, ECF No. 34; Letter, Apr. 17, 2015, ECF No. 37. Consequently, Plaintiff’s
second motion to amend is granted pursuant to Federal Rule of Civil Procedure Rule

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15(a)(2). Nurse W. Williams will be amended on the docket to be Nurse Watisha
Williams and service is ordered on her as directed below.
II.

Motion for Default Judgment
Plaintiff moves for an entry of default (ECF No. 22) because he believes that

Defendants should have answered or otherwise responded to his Complaint within thirty
days of the mailing of request to waive service. Service was ordered in this case on
December 1, 2014. (ECF No. 7.) The Process Receipt and Return and Waiver of Service
of Summons were not mailed until December 3, 2014. (ECF No. 9.) Defendants filed
their waivers on December 23, 2014 (ECF No. 11), January 21, 2015 (ECF No. 15), and
February 11, 2015 (ECF No. 25).1 Moreover, Defendants timely filed answers by the
sixty-day deadline assuming waiver of service—February 2, 2015.2 See Montgerard
Answer, Jan. 29, 2015, ECF No. 16; Williams Answer, Jan. 29, 2015, ECF No. 17;
Answer, Feb. 2, 2015, ECF No. 18; Dice, Doe, Hawkins Answer, Feb. 2, 2015, ECF No.
19.
Rule 55 of the Federal Rules of Civil Procedure provides that a clerk “must enter
[a] party’s default” when that party “failed to plead or otherwise defend, and that failure
is shown by affidavit or otherwise.” Federal Rules of Civil Procedure Rule 4 covers the
issue of service. Rule 4(d) states that when a waiver of service is requested, as was in
1

Although the last waivers were not filed until February 11, 2015, they were executed on
December 5, 2014. Roberts Waiver of Service of Summons, ECF No. 25 at 2; Hawkins Waiver
of Service of Summons, ECF No. 25 at 4. The reason for the discrepancy in the filing date is
unclear from the docket.
2

The sixtieth day, February 1, 2015, fell on a Sunday. Consequently, Defendants had until
Monday, February 2, 2015 within which to file their answers. Fed. R. Civ. P. 6(a)(1)(C).

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this case, a defendant must be given “a reasonable time of at least 30 days after the
request was sent” to return the waiver. Fed. R. Civ. P. 4(d)(1)(F) (emphasis added).
Additionally, if a defendant files a waiver, he has “60 days after the request was sent” to
file an answer or responsive pleading to the complaint. Fed. R. Civ. P. 4(d)(3).
Although the Order for Service was filed in this case on December 1, 2014, the
request for waiver of service was not mailed to Defendants until December 3, 2014.
Consequently, if Defendants chose to waive service, they had sixty days from December
3, 2014 until February 2, 2015, to file an answer to the Complaint. Defendants timely
filed their answers to the Complaint (ECF Nos. 16-19 ) on January 29, 2015 and February
2, 2015. Therefore, Defendants are not in default and Plaintiff’s motion (ECF No. 22) is
denied.
III.

Discovery Motions
Plaintiff currently has three discovery motions pending. These motions are denied

as explained below.
A.

Motion for Leave to File Deposition Upon Written Questions

Plaintiff seeks leave to file a deposition upon written questions pursuant to Federal
Rule of Civil Procedure 31 (ECF Nos. 28). Plaintiff only needs permission from this
Court to depose someone who is incarcerated. Fed. R. Civ. P. 31(a)(2)(B). At this time,
Plaintiff’s request is thus denied as moot. Plaintiff may depose witnesses pursuant to
Rule 31 at his own expense.

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B.

Motion for Physical Examination

Plaintiff moves for a physical examination pursuant to Federal Rule of Civil
Procedure 35. (ECF No. 29.) He seeks to use this examination to prove that he was
injured when his DNA was forcibly taken on October 17, 2014. A physical examination
at this point is irrelevant to the injuries sustained on October 17, 2014. Plaintiff can
prove he sustained injuries through his medical records, witness testimony, and/or
affidavits which would be better suited to show that Plaintiff suffered injuries at the time
of the alleged excessive force. Plaintiff’s request is consequently denied.
C.

Motion for an Extension of Time to Complete Discovery

Finally, Plaintiff moves for an extension of time to complete discovery due to the
addition of several defendants in his amended complaints. See Mot. to Extend Disc. 1-2,
ECF No. 41. Discovery is independent for each defendant and does not begin to run until
that defendant files an answer or other responsive pleading. Consequently, Plaintiff’s
motion is denied as moot. However, if the parties wish to jointly extend discovery due to
the additional defendants, they may do so by joint motion filed within fourteen days of
the date of this Order.
IV.

Preliminary Review of Amended Complaint
A.

Standard for Preliminary Review

Because Plaintiff’s Amended Complaint “seek[s] redress from a governmental
entity or [an] officer or employee of a governmental entity,” this Court is required to
conduct a preliminary screening. See 28 U.S.C. § 1915A(a). In so doing, the district
court must accept all factual allegations in the complaint as true. Brown v. Johnson, 387
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F.3d 1344, 1347 (11th Cir. 2004). Pro se pleadings are “held to a less stringent standard
than pleadings drafted by attorneys” and will be “liberally construed.” Tannenbaum v.
United States, 148 F.3d 1262, 1263 (11th Cir. 1998). A pro se pleading is, nonetheless,
subject to dismissal prior to service if the court finds that the complaint, when construed
broadly and viewed in the light most favorable to the plaintiff, fails to state a claim upon
which relief may be granted. See 28 U.S.C. §1915A(b)(1).
A complaint fails to state a claim when it does not include “enough factual matter
(taken as true)” to “give the defendant fair notice of what the . . . claim is and the grounds
upon which it rests[.]” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56, 127 S.Ct.
1955, 167 L.Ed.2d 929 (2007). “Threadbare recitals of the elements of cause of action,
supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662,
663, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). To survive a preliminary review, a
complaint must “raise the right to relief above the speculative level” by alleging specific
facts and creating “a reasonable expectation” that discovery will reveal the evidence
necessary to prove a claim. See Twombly, 550 U.S. at 555-56.
To state a claim for relief under §1983, a plaintiff must allege that: (1) an act or
omission deprived him of a right, privilege, or immunity secured by the Constitution or a
statute of the United States; and (2) the act or omission was committed by a person acting
under color of state law. Hale v. Tallapoosa Cnty., 50 F.3d 1579, 1581 (11th Cir. 1995).
If a litigant cannot satisfy these requirements, or fails to provide factual allegations in
support of his claim or claims, the complaint is subject to dismissal. See Chappell v.
Rich, 340 F.3d 1279, 1282-84 (11th Cir. 2003).
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B.

Plaintiff’s Amended Claims

As mentioned above, the following claims survived the preliminary review of his
initial Complaint: (1) Fourth and Fourteenth Amendment Claims against Detective John
Doe (Charlie Roberts), Sergeant Hawkins, Investigator Dice, Lt. LeFrancois, Nurse W.
Williams, Officer Cross, Officer Owens, and Officer Handle for excessive force in taking
the DNA sample; (2) Fourth and Fourteenth Amendment claims against Major Lewis,
Captain Collier, Corporal Wilson, Corporal Hunt, Corporal Bryant, Deputy Cruz
(formerly Adams), and Deputy Goree for failure to intervene/protect; (3) Fourteenth
Amendment claims for a denial of medical care against Corporal Hunt, Officer Handle,
Nurse Williams, and Nurse Montgerard.

The following claims in Plaintiff’s initial

Complaint were dismissed: (1) Plaintiff’s Eighth Amendment excessive force claims; (2)
all claims against Sheriff Sproul and Colonel Ostrander; (3) Plaintiff’s Fifth Amendment
claims; (3) his Sixth Amendment claims; (4) his deliberate indifference to a serious
medical needs claim against Corporal Wilson; (5) First Amendment retaliation claims
against Major Haggerty and Lt. Montgerard; (6) Fourteenth Amendment equal protection
claims against Major Haggerty; (7) conspiracy claims against Major Haggerty, Lt.
Montgerard, Nurse Montgerard, Corporal Hunt, Officer Handle, Nurse Williams,
Corporal Wilson and Lt. LeFrancois. Order & R&R 6-12, Dec. 1, 2014, ECF No. 7;
Order 1-3, Jan. 14, 2013, ECF No. 13.
The Court declines to engage in a duplicative explanation of why Plaintiff’s
reasserted claims should be dismissed. For the reasons explained in the initial Report and
Recommendation and Order adopting that Recommendation over Plaintiff’s objections, it
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is again recommended that the following claims be dismissed: (1) all Fifth, Sixth, and
Eighth Amendment claims; (2) all conspiracy claims; (3) Plaintiff’s First Amendment
retaliation claims against Major Haggerty and Lt. Montgerard;3 (4) Plaintiff’s deliberate
indifference claim against Corporal Wilson,4 and Plaintiff’s claims that Sheriff Sproul,
Colonel Ostrander, Major Lewis, Major Haggerty, Lt. Montgerard, and Captain Collier
are liable as supervisors for various failures to train, to discipline, and to properly
manage, and for creating a custom of using excessive force and denying medical
treatment.5 It is likewise recommended that the following claims be allowed to proceed
with some additional defendants: (1) Fourth and Fourteenth Amendment claims against
Charlie Roberts (formerly John Doe), Sergeant Hawkins, Investigator Dice, Lt.
LeFrancois, Nurse W. Williams, Officer Cross, Officer Owens, and Officer Handle for
excessive force while obtaining Plaintiff’s DNA; (3) Fourth and Fourteenth Amendment
claims for failure to protect or intervene against Tyrone Griffin, Major Lewis, Captain
Collier, Corporal Wilson, Corporal Hunt, Corporal Bryant, Deputy Cruz (formerly
Adams), Deputy Goree (identified as “Goren” in the Amended Complaint), Officer
3

Plaintiff again fails to factually allege a causal connection between his protected activity and
the Defendants’ alleged retaliatory acts. Statements that Defendants acted with “evil-intent to
punish [Plaintiff]” are the type of self-serving conclusory allegations that do not support a claim
for retaliation. See, e.g., Order & R&R 9-10, Dec. 1, 2014; Order 2, Jan. 14, 2013.
4

Plaintiff again fails to include any factual allegations concerning Corporal Wilson’s alleged
deliberate indifference. She is merely lumped in with Defendants Hunt and Handle in Plaintiff’s
cause of action section regarding their alleged deliberate indifference to Plaintiff’s serious
medical need.
5

Plaintiff’s allegations concerning these claims are merely conclusory allegations that
supervisors failed to punish and/or properly train their subordinates. As explained in the Report
and Recommendation, such allegations do not state a claim under § 1983. See, e.g., Order &
R&R 7-8, Dec. 1, 2014; Order 2, Jan. 14, 2013.

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Christian, and Officer Stone; and (4) Fourteenth Amendment claim against Nurse
Montgerard, Nurse Williams, Corporal Hunt, and Officer Handle for deliberate
indifference to his serious medical needs. These claims add three defendants and clarify
two—Charlie Roberts, who has already been served, Albany Police Department Gang
Task Force member Tyrone Griffin, Dougherty County Jail Officers Christian and Stone,
and Nurse Watisha Williams who works at Lily Pad.
There are two remaining federal claims from Plaintiff’s Amended Complaint that
are discussed below. Plaintiff claims that his procedural and substantive due process
rights have been violated by Defendants Charlie Roberts (formerly John Doe), Sergeant
Hawkins, Investigator Dice, Lt. LeFrancois, and Nurse Watisha Williams. Plaintiff also
brings several state law claims which are briefly discussed below.
1.

Substantive and Procedural Due Process

Plaintiff claims generally that Defendants Charlie Roberts (formerly John Doe),
Sergeant Hawkins, Investigator Dice, Lt. LeFrancois, Nurse Watisha Williams violated
his due process rights in taking his DNA through excessive force. He then later states
that these Defendants, excluding Watisha Williams, violated his substantive due process
rights “by use of unnecessary force with evil-intent to cause bodily harm and obtain
evidence.” Am. Compl. 10. These allegations are sufficient to survive a preliminary
review.
The Court notes that Defendant Lt. LeFrancois, along with several other
Defendants, filed a motion for summary judgment to which he attached a certified copy
of a search warrant which provides for the collection of Plaintiff’s DNA. See Mot. for
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Summ. J. Ex. 1, ECF No. 49-3. As the warrant appears facially valid, it is likely that
these claims will be resolved in Defendants’ favor.

The Court, however, will not

consider the warrant at the frivolity review stage. Defendant LeFrancois is directed to
amend his motion for summary judgment to address these additional claims.
2.

State Law Claims

Plaintiff also asserts state law claims for intentional misconduct, gross negligence,
assault/battery, and intentional infliction of emotional distress.

To the extent that

Plaintiff is attempting to assert a separate cause of action for general “intentional
misconduct,” no such independent claim exists in Georgia. See, e.g., Kidd v. Coates, 271
Ga. 33, 33 (discussing intentional conduct in the context of immunities); Hamilton v.
Powell, Goldstein, Frazier, & Murphy, 252 Ga. 149, 149 (1984) (discussing allegations
of intentional misconduct to prove elements of damages). It is therefore recommended
that Plaintiff’s claim for intentional misconduct be dismissed.
CONCLUSION
For the reasons explained above, Plaintiff’s motions to amend (ECF Nos. 12, 30)
are granted. Plaintiff’s motion for a default judgment (ECF No. 22), motion for leave to
depose a third party (ECF No. 28), motion for a physical examination (ECF No. 29), and
motion for an extension of time to complete discovery (ECF No. 41) are denied. It is
recommended that several previously dismissed claims reasserted in the Amended
Complaint and Plaintiff’s state law claim for intentional misconduct be dismissed. The
currently served parties shall have fourteen days within which to file or amend their
dispositive motions. When addressing the excessive force claims, the Court directs the
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parties to Kingsley v. Hendrickson, -- U.S. --, No. 14-6368, 2015 WL 2473447, at *6-7
(June 22, 2015) for the proper standard to be applied to pre-trial detainees.
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written
objections to this Recommendation, or seek an extension of time to file objections, within
fourteen (14) days after being served with a copy hereof. The District Judge shall make a
de novo determination of those portions of the Recommendation to which objection is
made. All other portions of the Recommendation may be reviewed for clear error. The
parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to
object to a magistrate judge’s findings or recommendations contained in a report and
recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the
right to challenge on appeal the district court’s order based on unobjected-to factual and
legal conclusions if the party was informed of the time period for objecting and the
consequences on appeal for failing to object. In the absence of a proper objection,
however, the court may review on appeal for plain error if necessary in the interests of
justice.”
ORDER FOR SERVICE
Service is ordered on Albany Police Department Gang Task Force Officer Tyrone
Griffin, Dougherty County Jail Officers Christian and Gregory Stone, and Lily Pad
employee Watisha Williams. They shall file an Answer, or such other response as may
be appropriate under the Federal Rules of Civil Procedure, 28 U.S.C. § 1915, and the
Prison Litigation Reform Act. Defendants are reminded of the duty to avoid unnecessary
service expenses and the possible imposition of expenses for failure to waive service.
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DUTY TO ADVISE OF ADDRESS CHANGE
During this action, all parties shall at all times keep the Clerk of this Court and all
opposing attorneys and/or parties advised of their current address. Failure to promptly
advise the Clerk of any change of address may result in the dismissal of a party’s
pleadings.
DUTY TO PROSECUTE ACTION
Plaintiff 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, AND CORRESPONDENCE
It is the responsibility of each party to file original motions, pleadings, and
correspondence with the Clerk of Court. A party need not serve the opposing party by
mail if the opposing party is represented by counsel.

In such cases, any motions,

pleadings, or correspondence shall be served electronically at the time of filing with the
Court. If any party is not represented by counsel, however, it is the responsibility of each
opposing party to serve copies of all motions, pleadings, and correspondence upon the
unrepresented party and to attach to said original motions, pleadings, and correspondence
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filed with the Clerk of Court 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.).
DISCOVERY
Plaintiff shall not commence discovery until an answer or dispositive motion has
been filed on behalf of Defendants from whom discovery is sought by Plaintiff.
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. Plaintiff’s deposition may be taken at any time during the time period
hereinafter set out, provided that 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 the
service of written discovery requests) shall be completed within 90 days of the date of
filing of an answer or dispositive motion by Defendants (whichever comes first) unless
an extension is otherwise granted by the Court upon a showing of good cause therefor or
a protective order is sought by Defendants and granted by the Court. This 90-day period
shall run separately as to each Defendant beginning on the date of filing of each
Defendant’s answer or dispositive motion (whichever comes first). 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.
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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/party. 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 TWENTY-FIVE (25) to
each party, REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS under
Rule 34 of the Federal Rules of Civil Procedure may not exceed TEN (10) requests to
each party, and REQUESTS FOR ADMISSIONS under Rule 36 of the Federal Rules of
Civil Procedure may not exceed FIFTEEN (15) requests to each party. No party is
required to respond to any request 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 in the absence 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 one hundred-twenty (120) days from when
the discovery period begins.
SO ORDERED and RECOMMENDED, this 30th day of June, 2015.
S/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE

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