DIAMOND v. GEORGIA DEPARTMENT OF CORRECTIONS et al
Filing
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ORDER granting 2 MOTION for Leave to Proceed in forma pauperis, denying 3 MOTION to Appoint Counsel, REPORT AND RECOMMENDATION re 1 Complaint. Ordered by US Magistrate Judge Stephen Hyles on 12-16-13. (mpm)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
ASHLEY DIAMOND,1
Plaintiff,
VS.
DR. SILVER, DR. THOMPSON,
Warden SHAY HATCHER, Deputy
Warden RUTHIE SHELTON, GDOC,
and RSP,
Defendants
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NO. 4:13-CV-511-CDL-MSH
42 U.S.C. § 1983
ORDER AND
REPORT AND RECOMMENDATION
Plaintiff Ashley Diamond, a prisoner at Rutledge State Prison (“RSP”), has filed a
pro se civil rights action under 42 U.S.C. § 1983. Plaintiff appears to allege violations of
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The complaint form names as additional Plaintiffs, Christopher Leach and James Moore,
Jr. Plaintiff is the only prisoner to have submitted an in forma pauperis (“IFP”) application.
Moreover, neither Leach nor Moore signed the complaint; instead, they have submitted separate
“Declarations” detailing Gender Identity Disorder issues similar to Plaintiff’s (ECF Nos. 1-2 &
1-3). Leach and Moore cannot be joined as Plaintiffs in this action. First, a pro se Plaintiff may
not represent the interests of other prisoners. See e.g., Wallace v. Smith, 145 F. App’x 300, 302
(11th Cir. 2005) (citing Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir.1975) (finding it
“plain error to permit [an] imprisoned litigant who is unassisted by counsel to represent his fellow
inmates in a class action”)). Second, the Eleventh Circuit Court of Appeals has held that
prisoners proceeding in forma pauperis are not allowed to join together as plaintiffs in a single
lawsuit and pay only a single filing fee. Each prisoner is required to file his own lawsuit and pay
the full filing fee. See Hubbard v. Haley, 262 F.3d 1194 (11th Cir. 2001). If Leach or Moore
wish to assert claims, they must do so on their own behalf by filing a separate complaint and either
paying the $350 filing fee or obtaining permission to proceed IFP.
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his rights under the Eighth Amendment and Title II of the Americans with Disabilities Act
(the “ADA”), 42 U.S.C. § 12101, et seq. Currently pending before the Court are the
following: (1) the complaint, which must be screened under 28 U.S.C. § 1915A (ECF No.
1); (2) an application for leave to proceed in forma pauperis (“IFP”) (ECF No. 2); and (3) a
motion for appointment of counsel (ECF No. 3).
Based upon Plaintiff’s submissions, the Court hereby GRANTS his motion to
proceed IFP and waives the initial partial filing fee pursuant to 28 U.S.C. § 1915(b)(1).
Plaintiff is nevertheless required to pay the Court’s $350 filing fee, as is discussed below.
The Clerk of Court is directed to send a copy of this Order to the business manager of
RSP.
Regarding Plaintiff’s motion for appointment of counsel, under 28 U.S.C. §
1915(e)(1), the district court “may request an attorney to represent any person unable to
afford counsel.” However, there is “no absolute constitutional right to the appointment
of counsel” in a section 1983 lawsuit. Poole v. Lambert, 819 F.2d 1025, 1028 (11th Cir.
1987).
Appointment of counsel is a privilege that is justified only by exceptional
circumstances. Lopez v. Reyes, 692 F.2d 15, 17 (5th Cir. 1982). In deciding whether
legal counsel should be provided, the Court considers, among other factors, the merits of
Plaintiff’s claim and the complexity of the issues presented. Holt v. Ford, 682 F.2d 850,
853 (11th Cir. 1989). Plaintiff has set forth the essential factual allegations underlying
his claims and the Court will determine whether Plaintiff’s allegations support a colorable
legal claim. This process is routine in pro se prisoner actions and therefore “exceptional
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circumstances” justifying appointment of counsel do not exist. Accordingly, Plaintiff’s
motion is DENIED.
I.
STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 1915A(a), a federal court is required to conduct an initial
screening of a prisoner complaint “which seeks redress from a governmental entity or
officer or employee of a governmental entity.” Section 1915A(b) requires a federal court
to dismiss a prisoner complaint that is: (1) “frivolous, malicious, or fails to state a claim
upon which relief may be granted”; or (2) “seeks monetary relief from a defendant who is
immune from such relief.”
A claim is frivolous when it appears from the face of the complaint that the factual
allegations are “clearly baseless” or that the legal theories are “indisputably meritless.”
Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993). 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 (2007) (noting that “[f]actual allegations must be
enough to raise a right to relief above the speculative level,” and that the complaint “must
contain something more . . . than . . . a statement of facts that merely creates a suspicion [of]
a legally cognizable right of action”) (internal quotations and citations omitted); see also
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (explaining that “threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice”).
In making the above determinations, all factual allegations in the complaint must be
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viewed as true. Brown v. Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004). Moreover,
“[p]ro se pleadings are held to a less stringent standard than pleadings drafted by attorneys
and will, therefore, be liberally construed.” Tannenbaum v. United States, 148 F.3d 1262,
1263 (11th Cir. 1998).
In order to state a claim for relief under section 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 County, 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, then the complaint is subject to dismissal.
See Chappell v. Rich, 340 F.3d 1279, 1282-84 (11th Cir. 2003) (affirming the district
court’s dismissal of a section 1983 complaint because the plaintiffs factual allegations
were insufficient to support the alleged constitutional violation). See also 28 U.S.C. §
1915A(b) (dictating that a complaint, or any portion thereof, that does not pass the standard
in section 1915A “shall” be dismissed on preliminary review).
II.
BACKGROUND
Plaintiff allegedly suffers from Gender Identity Disorder and Posttraumatic Stress
Disorder, the latter from multiple sexual assaults. He claims he requested psychotherapy
and hormone therapy, but was told by Defendants Dr. Silver, Dr. Thompson, and the
“Warden” (presumably Defendant Warden Shay Hatcher), that he would not be receiving
any treatment for his conditions. One or more of these Defendants also allegedly told
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Plaintiff that RSP does not offer treatment for Gender Identity Disorder. Plaintiff further
claims that he wrote the Georgia Department of Corrections (“GDOC”) multiple times, but
received no response.
In addition to Drs. Silver and Thompson, Warden Hatcher, and the GDOC, Plaintiff
sues RSP itself and Ruthie Shelton, Deputy Warden of Care and Treatment at RSP seeking
injunctive relief and nominal, compensatory, and punitive damages.
III.
DISCUSSION
A.
Deputy Warden Ruthie Shelton
Plaintiff alleges no facts whatsoever against Deputy Warden Ruthie Shelton.
“While we do not require technical niceties in pleading, we must demand that the
complaint state with some minimal particularity how overt acts of the defendant caused a
legal wrong.” Douglas v. Yates, 535 F.3d 1316, 1322 (11th Cir. 2008) (citing Pamel
Corp. v. P.R. Highway Auth., 621 F.2d 33, 36 (1st Cir. 1980)). Moreover, Shelton cannot
be liable solely by virtue of her supervisory position. Hartley v. Parnell, 193 F.3d 1263,
1269 (11th Cir.1999). Accordingly, it is hereby RECOMMENDED that Deputy Warden
Ruthie Shelton be DISMISSED WITHOUT PREJUDICE.2
Pursuant to 28 U.S.C. § 636(b)(1), the Parties may serve and file written objections
to this recommendation with the UNITED STATES DISTRICT JUDGE within fourteen
(14) days after being served a copy of this recommendation.
2.
Dismissal without prejudice is appropriate when a more carefully drafted pro se complaint
might state a claim. Duff v. Steub, 378 F. App'x 868, 872 (11th Cir. Apr. 29, 2010).
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B.
Remaining Defendants
Construing the complaint liberally in Plaintiff’s favor, the Court concludes that
Plaintiff has alleged colorable claims against Dr. Silver, Dr. Thompson, and Warden Shay
Hatcher. Although the GDOC and RSP are not proper defendants with respect to an
Eighth Amendment claim brought under section 1983, see e.g., Will v. Mich. Dep't of State
Police, 491 U.S. 58, 71 (1989) (state and its agencies are not “persons” for purposes of
section 1983 liability), they would appear to be public entities subject to suit under the
ADA. See United States v. Georgia, 546 U.S. 151, 153-54 (2006). Accordingly, it is
hereby ORDERED that service be made on the five remaining Defendants, and that they
file 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.
Defendants are reminded of the duty to avoid unnecessary service expenses, and of the
possible imposition of expenses for failure to waive service pursuant to Rule 4(d).
DUTY TO ADVISE OF ADDRESS CHANGE
During the pendency of 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 filed herein.
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
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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. 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
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 the defendants from whom discovery is sought by the Plaintiff.
The Defendants shall not commence discovery until such time as an answer or dispositive
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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 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 (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 the defendants and granted by the court. This 90-day period shall run
separately as to Plaintiff and 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.
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/her or served upon him/her by
the opposing counsel/party. The undersigned incorporates herein those parts of the
Local Rules imposing the following limitations on discovery:
permission of the
court first obtained,
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INTERROGATORIES
except with written
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 shall be required to respond to any such requests which exceed these
limitations.
REQUESTS FOR DISMISSAL AND/OR JUDGMENT
The Court shall not consider requests for dismissal of or judgment in this action,
absent the filing of a 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
In accordance with the Prison Litigation Reform Act, Plaintiff’s custodian is hereby
directed to remit to the Clerk of this Court each month twenty percent (20%) of the
preceding month’s income credited to Plaintiff’s inmate account until the $350.00 filing
fee has been paid in full, provided the amount in the account exceeds $10.00. Transfers
from Plaintiff’s account shall continue until the entire filing fee has been collected,
notwithstanding the earlier dismissal of Plaintiff’s lawsuit.
PLAINTIFF’S OBLIGATION TO PAY FILING FEE
If Plaintiff is hereafter released from custody, he shall remain obligated to pay any
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remaining balance due of the above filing fee; Plaintiff shall continue to remit monthly
payments as required by the Prison Litigation Reform Act. Collection from Plaintiff of
any balance due by any means permitted by law is hereby authorized in the event Plaintiff
fails to remit payments.
SO ORDERED AND RECOMMENDED, this 13th day of December, 2013.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE
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