SMITH v. LIEUTENANT JOHN PHELPS

Filing 10

ORDER granting 2 MOTION for Leave to Proceed in forma pauperis, granting 6 MOTION to Amend/Correct 1 Complaint, and ORDER Directing Service as to Defendant Phelps. Plaintiff's motion to amend is granted and the GDOC shall be removed as a party. Lieutenant John Phelps shall be added as a defendant and served as directed in the Order. Ordered by US Mag Judge Stephen Hyles on 7/9/12. (AGH)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
GREGORY ALLEN SMITH,
Plaintiff,
vs.
Lieutenant JOHN PHELPS,
Defendant.
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CASE NO. 5:12-CV-160-MTT-MSH
42 U.S.C. § 1983

ORDER
Plaintiff Gregory Allen Smith filed in this Court a pro se civil rights complaint
under 42 U.S.C. § 1983 (ECF No. 1) and an application to proceed in forma pauperis. In
compliance with the Court’s May 15, 2012 Order (ECF No. 5), Plaintiff has provided the
Court with a copy of his prisoner trust fund account statement (ECF No. 9). This Court
also directed Plaintiff to supplement his complaint, and Plaintiff’s additional submissions
are discussed below.
Based on Plaintiff’s financial information, 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 Augusta State Medical Prison.

STANDARD FOR PRELIMINARY 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
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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 Cnty., 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).
DISCUSSION
As this Court noted in its May 15th Order, the only Defendant named in Plaintiff’s
complaint, the Georgia Department of Corrections (“GDOC”), is not a proper Defendant.
The Court therefore instructed Plaintiff to submit a supplement to his complaint to name
all defendants whom he believed played a role in the alleged violations of Plaintiff’s
rights. In response to the Court’s Order, Plaintiff has filed an amended complaint (ECF
No. 6-1), accompanied by a motion to amend (ECF No. 6).

Plaintiff’s amended

complaint indicates that he no longer wishes to name the GDOC as a Defendant and that
he wishes he sue Lieutenant John Phelps and “Cert Team Officers.” Plaintiff complains
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about an incident of excessive force occurring on January 12, 2012, at Central State
Prison, Plaintiff’s former place of confinement. He alleges that Phelps, without need or
provocation, shoved Plaintiff to the ground and repeatedly hit him in the face with a
radio, handcuffs, and keys. Phelps and the unnamed Cert Officers then allegedly kicked
Plaintiff in his back and ribs. Plaintiff states that he suffered a hairline fracture to his face
and must now receive treatment from a back specialist.
Plaintiff’s motion to amend his complaint is GRANTED to the extent provided
herein. In accordance with Plaintiff’s amended complaint, the Clerk’s Office is directed
to remove the GDOC as a party and to add Lieutenant John Phelps as the Defendant
herein. The Court concludes that Plaintiff has stated a colorable excessive force claim
against Lieutenant John Phelps. It is therefore ORDERED that service be made on
Phelps and that he 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. Defendant is reminded of his duty to avoid unnecessary service
expenses, and of the possible imposition of expenses for failure to waive service pursuant
to Rule 4(d).
Liberally construed, Plaintiff’s amendment also appears to assert a colorable
excessive force claim against the “Cert Team Officers.” The Eleventh Circuit Court of
Appeals, however, has held that a plaintiff may sue an unknown defendant only when he
sufficiently identifies the defendant to allow service of process. Moulds v. Bullard, 2009
WL 2488182 (11th Cir. Aug. 17, 2009); Dean v. Barber, 951 F.2d 1210, 1215-16 (11th
Cir.1992). In the present case, Plaintiff has not adequately identified the individual “Cert
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Team Officers” to allow this Court to serve them with the complaint. Plaintiff is advised
that it is his responsibility to ascertain these individuals’ names or otherwise identify
them, which he must do before the expiration of the statute of limitations. See Talbert v.
Kelly, 799 F.2d 62, 66 n.1 (3d Cir.1986) (explaining that the naming of a Doe defendant
in a complaint does not stop the statute of limitations from running or toll the limitations
period as to that defendant). If Plaintiff is able to discover the names of or otherwise
sufficiently identify these individuals, he may seek to amend his complaint to add them
as Defendants, as permitted by Rule 15 of the Federal Rules of Civil Procedure.
ORDER FOR SERVICE
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.
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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
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

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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.
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.

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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 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
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.

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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, 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 if he has the ability to make monthly payments and fails
to do so.
SO ORDERED, this 9th day of July, 2012.
S/Stephen Hyles
UNITED STATES MAGISTRATE JUDGE

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