Ingram v. Cash et al

Filing 5

ORDER directing service upon the defendants, with instructions to the parties. Signed by Judge Claude W. Hicks Jr. on 3/14/06. (Hicks, Claude)

Ingram v. Cash et al

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Case 3:06-cv-00010-CDL

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA ATHENS DIVISION : : Plaintiff : : VS. : : Officers ROBBY McCANON, ROBERT : CASH, LEE STANSLEY, and LEE : SOUTHERN, : Defendants : ____________________________________ WILL INGRAM,

NO. 3:06-CV-10 (CDL)
PROCEEDINGS UNDER 42 U.S.C. §1983 BEFORE THE U. S. MAGISTRATE JUDGE

ORDER

Plaintiff WILL INGRAM, an inmate at the Georgia Diagnostic and Classification Prison in Jackson, Georgia, has filed a pro se civil rights complaint under 42 U.S.C. § 1983. His application to proceed in forma pauperis has been granted by separate order entered simultaneously this date. I. BACKGROUND Plaintiff alleges that on August 3, 2005, he was arrested in Greene County, Georgia, on a charge of public drunkenness. Following his arrest, plaintiff was transported to the Greene County Jail where the four named defendants allegedly discharged an "X26 Taser gun" into plaintiff's back. According to plaintiff, the defendants did not need to use such force because plaintiff was not threatening in any way and responded to the officers' commands. Plaintiff was rendered

unconscious and complains that, other than paramedics checking his vital signs, he was not provided with any medical treatment whatsoever. Plaintiff ultimately was diagnosed with rapid heart beat and may have to have to his kidney removed, allegedly because of the Taser. Officers subsequently charged plaintiff with two counts of obstruction of an officer and a jury found plaintiff guilty of said charges. Plaintiff, who is black, appears to suggest that his race may have played a factor in the use of excessive force by the officers, who were white.

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Plaintiff seeks $2 million dollars in damages. In addition to monetary relief, plaintiff seeks release from prison, and asks that criminal charges be brought against the defendants and that they be fired from their jobs at the Greene County Jail. II. DISCUSSION As an initial matter, the Court notes that certain of the relief requested by plaintiff is not available in this action. Release from prison is not available to plaintiff as relief under 42 U.S.C. § 1983. See Preiser v. Rodriguez, 411 U.S. 475 (1973) (challenges to duration or fact of confinement, as opposed to conditions of confinement, are cognizable solely by petition for writ of habeas corpus). Moreover, this Court is without authority to prosecute the defendants; that decision lies within the discretion of the proper prosecuting authority. United States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965). This Court similarly has no authority to order that the defendants be fired. The decision whether to fire the defendants is for their supervisors within Greene County, not this Court. With regard to plaintiff's claim for damages, the Court notes that the U.S. Supreme Court's decision in Heck v. Humphrey, 512 U.S. 477 (1994), may bar plaintiff's excessive force claim in light of plaintiff's conviction for obstruction of an officer. See, e.g., Hainze v. Richards, 207 F.3d 795, 799 (5th Cir.2000) (Texas conviction for aggravated assault on a police officer bars claims for excessive force related to the same conduct); Hudson v. Hughes, 98 F.3d 868, 872 (5th Cir.1996) (Heck barred excessive force claims of plaintiff, who was arrested for burglary, but prosecuted for battery of an officer and felon in possession of a firearm). Under the facts of the present case, it is unclear whether plaintiff's claim of excessive force, if successful, would necessarily invalidate his conviction. Wells v. Cramer, 158 Fed. Appx. 203 (11th Cir. 2005) (claim not barred where alleged excessive force occurred after plaintiff arrested, restrained, and posed no threat). Accordingly, this Court concludes that plaintiff's excessive force claim survives this initial frivolity review and will let it go forward against the defendants.

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It is hereby ORDERED that service be made as provided by law upon the defendants 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, 28 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!

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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 (including letters to the Clerk or to a judge) upon opposing parties or counsel for opposing parties if they are represented; and to attach to said original motions and pleadings 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.). 3

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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 prisoner, may be taken at any time during the time period hereinafter set out provided prior arrangements are made with his custodian. IT IS HEREBY ORDERED that discovery (including depositions and interrogatories) shall be completed WITHIN 90 DAYS from the date of filing of an ANSWER or DISPOSITIVE MOTION by the defendant(s), 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/dispositive motion. The scheduling of a trial herein 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
SERVED UPON HIM BY THE OPPOSING COUNSEL/PARTY! TO HIM OR

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 OF

under Rule 34 of the

FEDERAL RULES

CIVIL PROCEDURE may not exceed TEN (10) requests to each party, and 4

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REQUESTS FOR ADMISSIONS

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under Rule 36 of the FEDERAL RULES OF CIVIL PROCEDURE may not

exceed FIFTEEN (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 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 $250.00 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 $250.00 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 addition, plaintiff's complaint is subject to dismissal if he has the ability to make monthly payments and fails to do so. 5

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ELECTION TO PROCEED BEFORE THE UNITED STATES MAGISTRATE JUDGE Under Local Rule 72, all prisoner complaints filed under provisions of 42 U.S.C. §1983 are referred to a full-time United States Magistrate Judge for this district for consideration of all pretrial matters. In addition, 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 all of the parties. Whether the parties elect to proceed before a magistrate judge or retain their right to proceed before a U. S. district judge is strictly up to the parties themselves.

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After the filing of responsive pleadings by the defendants, the Clerk of court is directed to

provide ELECTION FORMS to the parties and/or to their legal counsel, if represented. Upon receipt of the ELECTION FORMS, each party shall cause the same to be executed and returned to the Clerk's Office WITHIN FIFTEEN (15) DAYS. Counsel may execute ELECTION FORMS on behalf of their clients provided they have such permission from their clients. However, counsel must specify on the ELECTION FORMS on whose behalf the form is executed. SO ORDERED, this 14th day of MARCH, 2006.

CLAUDE W. HICKS, JR. UNITED STATES MAGISTRATE JUDGE

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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. PURSUANT TO THE FEDERAL RULES OF CIVIL PROCEDURE, DISCOVERY (DEPOSITIONS, INTERROGATORIES, REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS, REQUESTS FOR ADMISSIONS, 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.

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