JONES v. RUSSIAN et al
Filing
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ORDER granting 2 MOTION for Leave to Proceed in forma pauperis, denying 5 MOTION to Appoint Counsel and ORDER Directing Service against all Defendants. Ordered by US Mag Judge Stephen Hyles on 5/29/12. (AGH)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
FRANKLIN JONES,
Plaintiff,
v.
DELTON RUSSIAN, et al.,
Defendants.
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CASE NO. 5:12-cv-126-MTT-MSH
42 U.S.C. § 1983
ORDER
Plaintiff Franklin Jones, an inmate at Georgia Diagnostic and Classification Prison
(the “GDCP”), filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983 (ECF
No. 1). Plaintiff’s Complaint is before this court for preliminary review pursuant to 28
U.S.C. § 1915A. Additionally, Plaintiff currently has pending two motions—a motion
for 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) and a motion for appointment of counsel
(ECF No. 5). 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).
Plaintiff is nevertheless obligated to pay the full filing fee, as will be
instructed later in this Order. The Clerk of Court is directed to send a copy of this Order
to the business manager of GDCP.
DISCUSSION
I.
Preliminary Review
A.
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, 556 U.S. 662, 678 (2009) (explaining that
“threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice”).
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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 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).
B.
Review of Plaintiff’s Claims
Plaintiff’s claims arise out of an October 25, 2010, incident of alleged excessive
force occurring at Macon State Prison, where Plaintiff was then confined. According to
Plaintiff, Defendant Cert Officers Delton Russian and Ladarious Thomas, accompanied
by Defendant Cert Officers Kerry Bolden, Darron Douglas, and Daren Griffin, and
Warden Gregory McLaughlin, handcuffed Plaintiff behind his back and escorted Plaintiff
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outside F-1 Building. There, Officer Russian allegedly threw Plaintiff to the ground and
dropped his knee forcefully into Plaintiff’s face. The Officers then took Plaintiff to the
gym, and “pursuant to orders from McLaughlin,” allegedly beat Plaintiff’s face. As a
result of the incident, Plaintiff suffered a fractured right orbital floor and received
contusions and abrasions necessitating stitches in Plaintiff’s temple and under his left
eye. Plaintiff complains that he had to wait a week before he was taken to a hospital and
treated for his injuries.
Construing the complaint liberally in favor of Plaintiff, the Court determines that
Plaintiff has stated colorable claims of excessive force, failure to intervene, and delay in
medical treatment against the Defendants. Service shall be made on the Defendants as
explained below.
II.
Motion to Appoint Counsel
Plaintiff asks that this Court appoint him counsel (ECF No. 5). Under 28 U.S.C. §
1915(e)(1), the district court “may request an attorney to represent any person unable to
afford counsel.” However, there is “no absolute constitutional right to the appointment of
counsel.” Poole v. Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987). Appointment of
counsel is a privilege that is justified only by exceptional circumstances. Lopez v. Reyes,
692 F.2d 15, 17 (5th Cir. 1982). In deciding whether legal counsel should be provided,
the Court should consider, among other factors, the merits of the plaintiff’s claim and the
complexity of the issues presented. Holt v. Ford, 682 F.2d 850, 853 (11th Cir. 1989).
Plaintiff has set forth the essential factual allegations underlying his claims, and
the applicable legal doctrines are readily apparent. Plaintiff therefore has not alleged the
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exceptional circumstances justifying appointment of counsel under Holt. The Court on
its own motion will consider assisting Plaintiff in securing legal counsel if and when it
becomes apparent that legal assistance is required in order to avoid prejudice to
Plaintiff’s rights. Accordingly, Plaintiff’s motion for appointment of counsel is DENIED
at this time.
ORDER FOR SERVICE
In light of the foregoing, it is hereby ORDERED that service be made on
Defendant Cert Officers Delton Russian, Ladarious Thomas, Kerry Bolden, Darron
Douglas, and Daren Griffith, and Warden Gregory McLaughlin, 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 Federal Rules of Civil
Procedure 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
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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
(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
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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.
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.
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
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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 29th day of May, 2012.
S/Stephen Hyles
UNITED STATES MAGISTRATE JUDGE
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