COLEMAN v. TERRY et al

Filing 12

ORDER Directing Service, ORDER granting IFP, REPORT AND RECOMMENDATION re 1 Complaint filed by TERRY LEE COLEMAN, 11 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order filed by TERRY LEE COLEMAN, 2 MOTION for Leave to Proceed in forma pauperis filed by TERRY LEE COLEMAN () Ordered by US Mag Judge Stephen Hyles on 2/6/12. (lws)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
TERRY LEE COLEMAN,

:
:
Plaintiff,
:
:
VS.
:
:
Warden WILLIAM TERRY, et al.,
:
:
Defendants.
:
____________________________________:

NO. 5:11-CV-496-MTT-MSH
42 U.S.C. § 1983

ORDER AND RECOMMENDATION
Plaintiff TERRY LEE COLEMAN, an inmate at Central State Prison (“CSP”), has
filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1).
Plaintiff also seeks leave to proceed in forma pauperis (ECF No. 2). In compliance
with this Court’s prior Order, Plaintiff has submitted a copy of his trust fund account
statement (ECF No. 10). Based on Plaintiff’s submissions, the Court finds that Plaintiff is
unable to prepay the 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). Plaintiff is nevertheless obligated to pay the full filing fee, in installments, as
will be directed later in this Order and Recommendation. The Clerk of Court is directed to
send a copy of this Order to the business manager of CSP.
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
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

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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. DISCUSSION
Plaintiff originally filed this lawsuit seeking both damages and injunctive relief
against six Defendants. Plaintiff subsequently filed a “Motion for Voluntary Dismissal
(without prejudice)” (ECF No. 9). In his motion, Plaintiff requests dismissal of his claims
for damages and appears to request dismissal of Sergeant Mary Gore, Officer Floyd, Dr.
Frederick Rovner, and Director Nursing Ms. Smith as Defendants. Plaintiff’s Motion to
Dismiss is GRANTED and the above claims and Defendants are DISMISSED WITHOUT
PREJUDICE.

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In addition to his general claim for injunctive relief against the two remaining
Defendants, Warden William Terry and Dr. Enwai Nwabueze, Plaintiff has also filed a
Motion for a Temporary Restraining Order (“TRO”) and Preliminary Injunction (ECF No.
11).
Plaintiff claims that he has been denied necessary medical care at CSP. According
to Plaintiff, he suffers from a number of serious medical conditions, including renal cancer,
kidney disease, diabetes, severe hypertension, “heart problems,” and “major back problems.”
Plaintiff alleges that he has only one kidney and that, prior to his incarceration, he was on the
list for a kidney transplant. Plaintiff’s numerous allegations against Dr. Nwabueze include
that the failed to treat Plaintiff’s hypertension or diabetes, delayed “mandatory” MRI studies,
refused to allow Plaintiff to see a kidney specialist, and otherwise impaired Plaintiff’s ability
to receive a kidney transplant. Plaintiff further claims that Warden Terry had first-hand
knowledge of Plaintiff’s medical conditions and need for care.
Construing Plaintiff’s claim for injunctive relief liberally and in favor of Plaintiff, the
Court will allow this claim to go forward against Defendants Warden William Terry and Dr.
Enwai Nwabueze. It would be premature, however, to grant the immediate relief Plaintiff
seeks in his Motion for a TRO and Preliminary Injunction. The standard for obtaining a
TRO is identical to that for obtaining a preliminary injunction. See Windsor v. U.S., 379 F.
App’x. 912, 916–17 (11th Cir.2010). Such relief is only appropriate where the movant
demonstrates that: (a) there is a substantial likelihood of success on the merits; (b) the

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preliminary injunction is necessary to prevent irreparable injury; (c) the threatened injury
outweighs the harm that a preliminary injunction would cause to the non-movant; and (d) the
preliminary injunction would not be adverse to the public interest. Parker v. State Bd. of
Pardons & Paroles, 275 F.3d 1032, 1034-35 (11th Cir. 2001). An irreparable injury “must
be neither remote nor speculative, but actual and imminent.” Siegel v. LePore, 234 F.3d
1163, 1176 (11th Cir.2000) (citations omitted).
At this juncture, the facts have not been sufficiently developed to conclude that there
is a substantial likelihood Plaintiff will ultimately prevail on the merits. Instead, the
Defendants should be afforded an opportunity to respond to Plaintiff’s allegations.
Accordingly, it is RECOMMENDED that Plaintiff’s Motion for a TRO or Preliminary
Injunction be DENIED.
Pursuant to 28 U.S.C. § 636(b)(1), Plaintiff may file written objections to this
recommendation with the United States District Judge, WITHIN FOURTEEN (14) DAYS
after being served with a copy thereof.
In light of the foregoing, it is hereby ORDERED that service be made on Warden
William Terry and Dr. Enwai Nwabueze, 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).

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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

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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 (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
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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: 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.
DIRECTIONS TO CUSTODIAN OF PLAINTIFF

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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

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if he has the ability to make monthly payments and fails to do so.
SO ORDERED AND RECOMMENDED, this 6th day of February, 2012.
S/STEPHEN HYLES
UNITED STATES MAGISTRATE JUDGE

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