WALKER v. WALKER, et al
Filing
6
ORDER granting 2 MOTION for Leave to Proceed in forma pauperis and DIRECTING SERVICE against all Defendants. Ordered by US Mag Judge Stephen Hyles on 11/15/11. (AGH)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
PATRICK WALKER,
Plaintiff,
vs.
Warden VICTOR WALKER, Medical
Director INE AKUMWANNE, and
Medical Administrator SPIKE,
Defendants.
_________________________________
:
:
:
:
:
:
:
:
:
:
:
CASE NO. 5:11-CV-360-CAR-MSH
42 U.S.C. § 1983
ORDER
Plaintiff Patrick Walker, presently an inmate at Smith State Prison, filed a pro se
civil rights complaint under 42 U.S.C. § 1983 and Title II of the Americans with
Disabilities Act (the “ADA”), 42 U.S.C. § 12101, et seq. His Complaint is before the
Court for preliminary review under 28 U.S.C. § 1915A. Additionally, Plaintiff’s motion
to proceed in forma pauperis (ECF No. 2) is presently pending before the Court. For the
reasons discussed below, Plaintiff’s motion to proceed in forma pauperis (“IFP”) is
granted. Additionally, the Court orders service as to the Defendants in this case.
BACKGROUND
Plaintiff suffers from a degenerative hip condition, which “cause[s Plaintiff] great
pain doing movement and difficulty walking.” (Compl. 4, ECF No. 1.) During his prior
incarceration at Baldwin State Prison, Plaintiff had medical profiles for “lower range
housing” and “med-assisted living.”
(Compl. Ex. G, ECF No. 1-7.)
Plaintiff was
nevertheless housed in a building that required him to use stairs on a daily basis. (Compl.
5.)
Plaintiff allegedly complained about his housing to Defendants Warden Victor
Walker and Medical Director Dr. Ine Akumwanne, but both Defendants failed to move
Plaintiff to a location consistent with his medical profile. (Compl. 4-5.) Plaintiff states
that on July 7, 2011, he fell down the stairs and suffered injuries. (Compl. 5.)
On August 4, 2011, Plaintiff submitted a written statement to Defendant Medical
Administrator Spike in which Plaintiff noted the pain in his hip and his continuing
problem using the stairs (Compl. Ex. D, ECF No. 1-4).
Plaintiff requested
accommodations consistent with his hip condition, but Spike allegedly failed to respond.
Plaintiff seeks compensatory, punitive, and nominal damages, and expenses and costs of
litigation in compensation for these grievances. (Compl. 6-7.)
DISCUSSION
I.
Motion to proceed in forma pauperis
Plaintiff seeks leave to proceed without prepayment of the $350.00 filing fee or
security therefor pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). Based on Plaintiff’s
submissions, the Court finds that Plaintiff is unable to prepay the $350.00 filing fee.
Accordingly, the Court GRANTS Plaintiff’s motion to proceed in forma pauperis and
waives the initial partial filing fee pursuant to 28 U.S.C. § 1915(b)(1).
However, even if a prisoner is allowed to proceed in forma pauperis, he must
nevertheless pay the full amount of the $350.00 filing fee. 28 U.S.C. § 1915(b)(1). If
sufficient assets are not in the account, the court must assess an initial partial filing fee
2
based on the assets available. Despite this requirement, a prisoner may not be prohibited
from bringing a civil action because he has no assets and no means by which to pay the
initial partial filing fee. 28 U.S.C. § 1915(b)(4). Plaintiff must pay 20% per month of his
prison account until the $350.00 filing fee is paid in full.
In accordance with provisions of the Prison Litigation Reform Act (“PLRA”), 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%) per month of Plaintiff’s prison
account until the $350.00 filing fee is paid in full, provided the amount in the account
exceeds $10.00. The Clerk of Court is directed to send a copy of this Order to the
business manager of Smith State Prison. 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.
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 PLRA. 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
3
Complaint is subject to dismissal if he has the ability to make monthly payments and fails
to do so.
II.
Preliminary Review of Plaintiff’s Complaint
A.
Standard for Preliminary Review
Plaintiff’s Complaint is before the Court for initial screening pursuant to the
provisions of the PLRA. As codified at 28 U.S.C. § 1915A, the PLRA provides:
(a) Screening – The court shall review, before docketing, if feasible or, in
any event, as soon as practicable after docketing, a complaint in a civil
action in which a prisoner seeks redress from a governmental entity or
officer or employee of a governmental entity.
(b) Grounds for Dismissal – On review, the court shall identify cognizable
claims or dismiss the complaint, or any portion of the complaint, if the
complaint –
(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.
Additionally, the Court must review Plaintiff’s complaint pursuant to 28 U.S.C. §
1915(e)(2) which similarly requires the Court to dismiss an in forma pauperis complaint,
or any portion thereof, if the court determines that it: (1) is frivolous or malicious; (2)
fails to state a claim upon which relief may be granted; or (3) seeks monetary relief
against a defendant who is immune from such relief. “The standards governing dismissal
under Rule 12(b)(6) apply to § 1915(e)(2)(b)(ii).” Alba v. Montford, 517 F.3d 1249,
1252 (11th Cir. 2008). “A complaint is subject to dismissal for failure to state a claim if
4
the allegations, taken as true, show [that] the plaintiff is not entitled to relief.” Jones v.
Bock, 549 U.S. 199, 215 (2007).
B.
Plaintiff’s Complaint
It is by no means clear that Plaintiff will ultimately prevail on the merits of his
claims. However, construing the complaint liberally in favor of Plaintiff, the undersigned
will allow Plaintiff’s claims under section 1983 and the ADA to go forward at this time
against all three Defendants.1
In light of the foregoing, it is hereby ORDERED that service be made on Warden
Victor Walker, Medical Director Dr. Ine Akumwanne, and Medical Administrator Spike,
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 PLRA. 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 Federal Rules of Civil
Procedure Rule 4(d).
CONCLUSION
For the reasons explained above, Plaintiff’s motion to proceed IFP is granted.
Additionally, his Complaint is sufficient under the preliminary review standard to
1
Plaintiff has been moved from Baldwin State Prison and is now incarcerated at Smith State
Prison. Thus, to the extent Plaintiff seeks injunctive relief, his claim is mooted by his transfer
from Baldwin State Prison. Zatler v. Wainwright, 802 F.2d 397, 399 (11th Cir. 1986) (a
prisoner's claim for injunctive relief is mooted by his transfer or release from the facility about
which he complains).
5
proceed at this point. Consequently, the Court orders service on the Defendants as
explained below.
ORDER FOR SERVICE
DUTY TO ADVISE OF ADDRESS CHANGE
During the pendency of this action, all parties shall at all time 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.
6
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
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(s) (whichever comes first) unless an extension is
7
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
Defendants’ answer(s) or dispositive motion(s) (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: 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
8
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 15th day of November, 2011.
S/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?