MAY v. INGRAM et al

Filing 12

ORDER Directing Service. Ordered by US Mag Judge Stephen Hyles on 12/27/11. (lws)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
CELESTE JANYA MAY,

:
:
Plaintiff
:
:
VS.
:
:
LISA INGRAM, et. al.,
:
:
Defendants
:
_________________________________:

NO. 5:11-CV-327 -CAR - MSH

ORDER
Plaintiff Celeste Janya May, a prisoner at the Pulaski State Prison in Hawkinsville,
Georgia, has filed a pro se civil rights complaint under 42 U.S.C. ' 1983. The Court
previously granted Plaintiff’s Motion to Proceed in forma pauperis, and Plaintiff has now
paid an initial partial filing fee as ordered by this Court. Plaintiff, however, is still
obligated to pay the full filing fee, as is directed later in this Order.
The Court has now also reviewed Plaintiff’s Complaint and Supplement as required
by 29 U.S.C. §1915A(a) and finds that Plaintiff has stated a colorable claim against
Defendants Lisa Ingram, Carlon Simons, and Patricia Anderson. It is thus ORDERED
that service be made on all Defendants.
STANDARD OF REVIEW
Because Plaintiff is a prisoner “seeking redress from a governmental entity or [an]
officer or employee of a governmental entity,” this Court is required to conduct a
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preliminary screening of her Complaint. 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 F.3d 1344, 1347 (11th Cir. 2004). Pro se pleadings, like the one in this case, are also
“held to a less stringent standard than pleadings drafted by attorneys” and must be
“liberally construed.@ Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.
1998). Nonetheless, a district court may still dismiss a prisoner complaint after the initial
review if it finds that the complaint (1) “is frivolous, malicious, or fails to state a claim
upon which relief may be granted@; or (2) Aseeks monetary relief from a defendant who is
immune from such relief.@ 28 U.S.C. §1915A(b); see also 28 U.S.C. §1915(2)(B)
(requiring the same of prisoners proceeding in forma pauperis).
A claim is frivolous when it appears from the face of the complaint that the factual
allegations are Aclearly baseless@ or that the legal theories are Aindisputably meritless.@
Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993). A complaint is thus properly
dismissed by the district court sua sponte if it is found to be “without arguable merit either
in law or fact.” Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001).
A complaint fails to state a claim when it does not include Aenough factual matter
(taken as true)@ to Agive 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). The
“factual allegations must be enough to raise a right to relief above the speculative level.@ Id.
In other words, the complaint must contain something more than “a statement of facts that
merely creates a suspicion [of] a legally cognizable right of action.” Id. A[T]hreadbare
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recitals of the elements of a cause of action, supported by mere conclusory statements, do
not suffice.@ Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).
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 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 hers claim or claims, the complaint is subject to dismissal. See Chappell v. Rich,
340 F.3d 1279, 1282-84 (11th Cir. 2003); see also 28 U.S.C. § 1915A(b).
DISCUSSION
In her Complaint (ECF No. 1) and Supplement (ECF No. 11), Plaintiff alleges that
she was physically assaulted and injured by three employees of the “Hope House” at the
Oconee Mental Health Center. The Court has previously taken notice that the Oconee
Center is a public, non-profit agency organized as a community service board under
Georgia Law, OCGA § 37-2-1 et. seq. See Oconee Comty. Svc. Bd. v. Holsey, 266 Ga. App.
385, 385-86, 597 S.E.2d 489 (2004) (finding that OCSB was entitled to sovereign
immunity). It appears that, at the time of the alleged attack, Plaintiff was completing her
probation at the Hope House and taking part in the facility’s drug rehabilitation program.
It also appears that Plaintiff’s stay at the Hope House was involuntary; Plaintiff alleges
that, if she had requested to be moved from the Hope House, her probation officer would
have transported her to the county jail.
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According to the Complaint, the three Defendants locked Plaintiff in a room against
her will and assaulted her without cause on January 1, 2011. The Complaint alleges that
Defendant Lisa Ingram, the Coordinator of “Hope House,” ordered Defendant Patricia
Anderson, a “house parent,” to hold the office door closed so that Plaintiff could not
escape. Defendant Ingram then began saying “Get her. Get her. Get her.” Plaintiff
alleges that she was scared and ran to a phone to dial “911,” but was caught before she
could do so. Defendant Ingram allegedly caught Plaintiff and put her knee on Plaintiff’s
neck. She then picked Plaintiff up off the ground and held Plaintiff as she again ordered
Defendant Carlon Simons, another “house parent,” to “get her.” The Complaint then
states that Defendant Simons grabbed Plaintiff by the hair and scratched her as Defendant
Ingram “was biting” her.
The attack allegedly stopped only when Defendant Anderson opened the door and
warned that someone outside the office was threatening to call the police. At some point,
the police were apparently called.

The officers took Plaintiff’s statement and

photographed her injuries. Plaintiff was later transported to the hospital where she was
given a shot (because of the bite marks) and x-rays were taken.
These allegations, when read in a light most favorable to the Plaintiff, do
sufficiently state a colorable claim for relief under 42 U.S.C. § 1983 and 28 U.S.C.
§1915A. See Hale, 50 F.3d at 1581. If true, the allegations suggest that Plaintiff was
subjected to false imprisonment and an excessive use of force by state actors. See
generally, Ortega v. Christian, 85 F.3d 1521, 1526 n. 2 (11th Cir. 1996) (identifying
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elements of false imprisonment claim) and Hudson v. McMillian, 503 U.S. 1, 7-8, 112
S.Ct. 995, 117 L.Ed.2d 156 (1992) (discussing requirements for excessive force claim).
It is thus ORDERED that service be made on 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, 28 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 she must diligently prosecute her 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.

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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
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 her custodian.
Plaintiff is hereby advised that failure to submit to a deposition may result in the dismissal
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of her 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 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.
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.

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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
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 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 she 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 her prior to the collection of the full filing fee.

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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, she 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 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 she has the ability to make monthly payments and fails to do so.
SO ORDERED, this 27th day of December, 2011.
S/STEPHEN HYLES
UNITED STATES MAGISTRATE JUDGE

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