Curney v. Blakely et al

Filing 18

ORDER for Service on Defendant Alston. Ordered by US Mag Judge Stephen Hyles on 12/13/11. (lws)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
DARIUS J. CURNEY,

:
:
Plaintiff,
:
:
VS.
:
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Unit Manager DAN BLAKELY,
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et al.,
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Defendants.
:
_________________________________:

NO. 5:11-CV-239-CAR-MSH
42 U.S.C. ' 1983

ORDER
In this 42 U.S.C. ' 1983 action, Plaintiff DARIUS J. CURNEY sued eight
Defendants with respect to events occurring at Macon State Prison, where Plaintiff was
previously confined. Plaintiff=s claims relate to injuries he suffered in attacks by other
inmates. On November 28, 2011, the undersigned issued an Order and Recommendation
(ECF No. 14) that Plaintiff=s claims against Unit Manager Dan Blakely be allowed to go
forward, but that Plaintiff=s claims against Officer Spencer Alston, Lieutenant Peter
Eaddie, Captain Davis, Officer Sherman Childs, Lieutenant Joseph Felton, and Lieutenant
Anthony Rawls be dismissed pursuant to 28 U.S.C. ' 1915A for failure to state a claim.
Plaintiff=s claim against Officer John Doe was dismissed without prejudice.
Plaintiff filed objections (ECF No. 17) to the Order and Recommendation on
December 8, 2011.

In his objections, Plaintiff does not contest this Court=s

recommendation of dismissal of any Defendants other than Officer Spencer Alston and

such recommendation shall stand.
In Newsome v. Chatham Cnty. Detention Ctr, 256 F. App=x. 342 at *2 (11th Cir.
Nov. 29, 2007), the Eleventh Circuit Court of Appeals held that a district court must treat
new factual allegations in an objection to a magistrate judge=s recommendation as a motion
to amend the complaint to include the additional allegations. Accordingly, Plaintiff=s
objections are so construed and his motion to amend the complaint is hereby GRANTED.
Construing Plaintiff=s amended complaint liberally in favor of Plaintiff, the Court
finds that Plaintiff has alleged a colorable claim against Officer Alston. Specifically,
Plaintiff alleges for the first time that Alston deliberately exposed Plaintiff to risk of harm
at the hands of Plaintiff=s attackers.
In light of the foregoing, the Court will allow Plaintiff=s lawsuit to proceed against
Officer Spencer Alston. It is hereby ORDERED that service be made on Officer Alston,
and that he 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. Defendant is 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
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

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(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
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 each 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.
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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/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: 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 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.
SO ORDERED, this 13th day of December, 2011.
S/STEPHEN HYLES
UNITED STATES MAGISTRATE JUDGE

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