Eshena v. Frazier et al

Filing 10

ORDER AND RECOMMENDATION re 1 Complaint filed by Anthony Michael Eshena. Service ordered on all defendants except Jane Doe defendants, with instructions to the parties. Recommendation to dismiss Jane Doe defendants. Objections to R&R due by 2/23/2009. Ordered by U.S. Mag Judge Claude W. Hicks, Jr. on 2/4/09. (CWH)

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION ANTHONY MICHAEL ESHENA, Plaintiff VS. Warden DAVID FRAZIER, Deputy Warden BETTY L. MCGREW, Captain RANSOM, Officer DIXON, CO JANE DOE NO. 1, NURSE JANE DOE NO. 2, JANE DOE NO. 3, Dr. CARL LIFT, and Administrator Mr. BUTTS, Defendants

NO. 5:08-CV-417 (CAR)

PROCEEDINGS UNDER 42 U.S.C. §1983 BEFORE THE U. S. MAGISTRATE JUDGE

ORDER AND RECOMMENDATION
Plaintiff ANTHONY MICHAEL ESHENA, an inmate at Scott State Prison in Hardwick, Georgia, has filed a pro se civil rights complaint under 42 U.S.C. § 1983. He has paid the initial partial filing fee as ordered by the Court and is responsible for the remainder of the filing fee as described in detail below. I. STANDARD OF REVIEW Pursuant to 28 U.S.C. § 1915A, a federal court is required to dismiss a prisoner's complaint against a governmental entity or officer or employee of a governmental entity at any time if the court determines that the action "(1) is 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 "where it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). A complaint may be dismissed for failure to state a claim on which relief may be granted when it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Scheuer v. Rhodes, 416 U.S. 232 (1974).

In order to state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege two elements. First, the plaintiff must allege that an act or omission deprived him of a right, privilege or immunity secured by the Constitution of the United States. See Wideman v. Shallowford Community Hosp., Inc., 826 F.2d 1030, 1032 (11th Cir. 1987). Second, the plaintiff must allege that the act or omission was committed by a person acting under color of state law. Id.

II. STATEMENT AND ANALYSIS OF PLAINTIFF'S CLAIMS Plaintiff ESHENA avers that on July 4, 2007 at approximately 10:00 A.M., while he was incarcerated at Hancock State Prison, he injured his left lower leg while playing softball. Plaintiff states that the injury occurred in the inmate recreation yard. Thereafter, he was unable to move and had to remain on the ground for ten minutes until several inmates physically carried him off the field. Plaintiff avers that no correctional officers were present to supervise the yard activities and, therefore, the inmates who assisted him from the field were unable to locate any officers to provide immediate medical attention for plaintiff. He alleges that defendants Frazier, McGrew, and Ransom are all aware that no officers are present on the yard on weekends and holidays. Plaintiff states that when he finally was able to return to his unit at 11:15 A.M., he explained to Officer Dixon what happened, showed her his injury, and described his pain. He requested that she notify the medical unit. She did not. He then requested that Jane Doe #1 notify the medical unit and she ignored him. At approximately 2:30 P.M., he spoke with Officer Stephens and showed her his injury. She, in turn, spoke with a nurse, Jane Doe #2, who refused to see plaintiff and simply sent him a message, through Officer Gibbs, that he should take Tylenol and put ice on his injury. Plaintiff alleges that his condition worsened over night, his foot and leg became severely swollen, and his foot became discolored. At approximately 8:30 A.M. on July 5th, he spoke with Officer Dixon and again showed her the injury. She refused to call the medical unit and told him to report to work detail. Plaintiff states that his foot was so swollen he could not put on his boot.

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Plaintiff maintains that when he reported for work detail, Officer Rachal called the medical unit and sent plaintiff back to his cell. He states that nurse Jane Doe #3 failed to call him to the medical unit as she promised Officer Rachal she would do. Plaintiff explains that by July 6th, his foot was twice its normal size and he was unable to sleep due the excruciating pain. He was finally called to the medical unit at approximately 2:30 P.M. on July 6th. He was later taken to the hospital in Macon, Georgia for treatment where it was determined that plaintiff had a fracture due to buckling of the bone. Plaintiff states that a partial cast/splint was placed on his leg and he was issued crutches and a prescription for pain medication. He was scheduled to see an orthopaedic surgeon on July 9th to have a full cast placed on his leg. Upon his return to Hancock State Prison, plaintiff avers that he was not given the pain medication as prescribed and that Dr. Lift refused to let him see an orthopaedic surgeon to have a full cast placed on his leg. Apparently, plaintiff was never allowed to see a surgeon. Within ten days, the swelling of plaintiff's foot went down and his splint no longer fit. He advises that the splint would shift from side to side, causing him severe pain. Plaintiff contends that he requested further medical help but the same was denied. Plaintiff also sought help from Mr. Butts and David Frazier, both of whom refused to help plaintiff with his medical condition.

DISCUSSION In relation to Jane Does 1, 2, and 3, fictitious party practice is not permitted by the Federal Rules of Civil Procedure or any other statute. Seeks v. Benton, 649 F. Supp. 1297 (S. D. Ala. 1986). Moreover, the Court has no way to identify these Jane Does and serve them with process. Consequently, the undersigned RECOMMENDS that these three defendants be dismissed without -3-

prejudice to the right of plaintiff to amend his complaint should he discover the actual identities of these three defendants. Plaintiff is advised that if he wishes to amend his complaint to replace the Jane Doe defendants with specifically named defendants, he must do so before any applicable statute of limitations expires. Under 28 U.S.C. § 636(b)(1), plaintiff may serve and file written objections to this recommendation with the District Judge to whom this case is assigned WITHIN TEN (10) DAYS after being served with a copy of this Order. At this time, the Court cannot find that the claims against the remaining defendants are wholly frivolous. These claims shall go forward against all defendants except the Jane Doe defendants. Accordingly, IT IS ORDERED AND DIRECTED that service be made as provided by law upon the remaining defendants; that 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 be filed herein by said defendants as required and permitted by law. 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 determine that discovery has been completed and 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.). THE CLERK OF COURT WILL NOT SERVE OR FORWARD COPIES OF SUCH MOTIONS, PLEADINGS, AND CORRESPONDENCE ON BEHALF OF THE PARTIES!

DISCOVERY PLAINTIFF(S) SHALL NOT COMMENCE DISCOVERY UNTIL AN ANSWER OR DISPOSITIVE MOTION HAS BEEN FILED ON BEHALF OF THE DEFENDANT(S) FROM W HOM DISCOVERY IS SOUGHT BY THE PLAINTIFF(S). THE DEFENDANT(S) 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 prior arrangements are made with his/her custodian. -5-

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 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 TEN (10) requests to each party. No party shall be required to respond to any such requests which exceed these limitations.

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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. -6-

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 addition, plaintiff's complaint is subject to dismissal if he has the ability to make monthly payments and fails to do so.

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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 to the parties and/or to their legal counsel, if represented. Upon receipt of the each party shall cause the same to be executed and returned to the Clerk's Office
ELECTION FORMS

ELECTION FORMS ELECTION FORMS,

WITHIN FIFTEEN (15) DAYS. Counsel may execute

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 AND RECOMMENDED, this 4th day of FEBRUARY, 2009.

CLAUDE W. HICKS, JR. UNITED STATES MAGISTRATE JUDGE

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ADDENDUM TO ORDER

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, 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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