GAMBLE v. CHATHAM et al

Filing 9

ORDER granting 2 MOTION for Leave to Proceed in forma pauperis filed by EZEKIEL GAMBLE, JR, denying 8 MOTION to Appoint Counsel filed by EZEKIEL GAMBLE, JR. ORDER Directing Service re 1 Complaint, filed by EZEKIEL GAMBLE, JR. Ordered by US MAGISTRATE JUDGE STEPHEN HYLES on 6-29-15. (mpm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
EZEKIEL GAMBLE, JR.,

:
:
Plaintiff,
:
VS.
:
:
WARDEN BRUCE CHATMAN et al., :
:
Defendants.
:
________________________________ :

NO. 5:15-CV-113-MTT-MSH

ORDER
Plaintiff Ezekiel Gamble, Jr., an inmate at Georgia State Prison (“GSP”) in
Reidsville, Georgia, has filed a pro se civil rights complaint under 42 U.S.C. § 1983.
Plaintiff also seeks leave to proceed without prepayment of the filing fee or security
therefor pursuant to 28 U.S.C. § 1915(a) (ECF No. 2), and he further moves for the
appointment of counsel (ECF No. 8).
I.

Motion to Proceed in forma pauperis
The Court has reviewed Plaintiff’s motion to proceed in forma pauperis (ECF No.

2) and, based on his submissions, finds that Plaintiff is presently unable to pre-pay any
portion of the filing fee. The Court thus GRANTS Plaintiff’s motion and waives the
initial partial payment required by 28 U.S.C. § 1915(b)(1).
Plaintiff is nevertheless obligated to pay the full filing fee, using the installment
payment plan described in 28 U.S.C. § 1915(b). The prison account custodian shall cause
to be remitted to the Clerk of this Court monthly payments of 20% of the preceding
month’s income credited to Plaintiff’s account (to the extent the account balance exceeds

$10) until the $350.00 filing fee has been paid in full. The Clerk of Court is directed to
send a copy of this Order to the business manager at Plaintiff’s place of incarceration.
II.

Motion to Appoint Counsel
Plaintiff has moved for the appointment of counsel.

Under 28 U.S.C. §

1915(e)(1), the Court “may request an attorney to represent any person unable to afford
counsel.” There is, however, “no absolute constitutional right to the appointment of
counsel” in a § 1983 lawsuit. Poole v. Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987)
(per curiam). 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 considers, among other factors, the merits of
Plaintiff’s claims and the complexity of the issues presented. Holt v. Ford, 862 F.2d 850,
853 (11th Cir. 1989) (en banc).
In this case, Plaintiff has filed a pro se complaint on a standard § 1983 form. The
Court is required to review the Complaint to determine whether Plaintiff’s allegations
state a colorable legal claim. This process is routine in pro se prisoner actions and is thus
not an “exceptional circumstance” justifying appointment of counsel. Although Plaintiff
reports he has been diagnosed with schizoaffective disorder bipolar type and antisocial
personality disorder, the Court notes that Plaintiff has clearly articulated the factual
allegations underlying his claims, and the applicable legal doctrines are readily apparent
at this stage of the litigation. As such, there is no present need to provide Plaintiff with
legal counsel. The Court is cognizant of Plaintiff’s condition, however, and should it

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later become apparent that counsel is necessary to avoid prejudicing Plaintiff’s rights, the
Court, on its own motion, will consider assisting Plaintiff in securing legal counsel at that
time. Consequently, no additional requests for counsel will be necessary. Plaintiff’s
motion to appoint counsel (ECF No. 8) is accordingly denied.
III.

Preliminary Screening

Because Plaintiff is a prisoner “seeking redress from a governmental entity or [an]
officer or employee of a governmental entity,” the Court is required to conduct a
preliminary screening of his Complaint. See 28 U.S.C. § 1915A(a). Having now done
so, the Court finds that Plaintiff has stated a colorable constitutional claim against
Defendants and the case should proceed for further factual development.
A. Standard of Review
When conducting preliminary screening under 28 U.S.C. § 1915A, the Court must
accept all factual allegations in the complaint as true. Boxer X v. Harris, 437 F.3d 1107,
1110 (11th Cir. 2006). Pro se pleadings, like the one in this case, are “held to a less
stringent standard than pleadings drafted by attorneys and will, therefore, be liberally
construed.” Id. (internal quotation marks omitted). Still, the Court must dismiss a
prisoner complaint if it “(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.” 28 U.S.C. §1915A(b).
A claim is frivolous if it “lacks an arguable basis either in law or in fact.” Miller
v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008) (internal quotation marks omitted). The

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Court may dismiss claims that are based on “indisputably meritless legal” theories and
“claims whose factual contentions are clearly baseless.” Id. (internal quotation marks
omitted). A complaint fails to state a claim if it does not include “sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). The factual allegations in a complaint “must be enough to raise a right to
relief above the speculative level” and cannot “merely create[] a suspicion [of] a legally
cognizable right of action.” Twombly, 550 U.S. at 555 (first alteration in original). In
other words, the complaint must allege enough facts “to raise a reasonable expectation
that discovery will reveal evidence” supporting a claim. Id. at 556. “Threadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678.
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, 1582 (11th Cir.
1995).

If a litigant cannot satisfy these requirements or fails to provide factual

allegations in support of his claim or claims, the complaint is subject to dismissal. See
Chappell v. Rich, 340 F.3d 1279, 1282-84 (11th Cir. 2003).

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B. Factual Allegations and Analysis
Plaintiff contends that on August 28, 2013, Defendant Chatman denied Plaintiff
the ability to appeal a decision to administer antipsychotic drugs and Benadryl to Plaintiff
against his will.

Plaintiff further contends that on February 16, 2015, Defendant

Williams likewise denied Plaintiff the ability to appeal the decision to involuntary
administer a different antipsychotic medication as well as Benadryl and Depakote to
Plaintiff. Plaintiff alleges that he has suffered various side effects from the drugs he was
forcibly administered. Compl. 7, ECF No. 1.
The United States Supreme Court has held that the Due Process Clause permits the
State to forcibly administer antipsychotic drugs to an inmate with a serious mental illness
“if the inmate is dangerous to himself or others and the treatment is in the inmate’s
medical interest.” Washington v. Harper, 494 U.S. 210, 227 (1990). In Washington, the
Court upheld a state policy that required the decision to involuntarily medicate a prisoner
to be made by a hearing committee composed of a psychiatrist, a psychologist, and the
associate superintendent of the facility. Id. at 229. The decision was subject to review by
the superintendent, and the inmate further had the right to seek judicial review of the
decision in a state court. Id. The Court concluded that such procedural safeguards were
adequate to ensure that the prisoner’s interests were taken into account and otherwise met
the requirements of due process. See id. at 235.
In this case, Plaintiff has attached to his Complaint a grievance response from
Defendant Chatman that shows that Plaintiff should be permitted to appeal his

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involuntary medication decision, although the response also states that there “does not
appear to be any thing [sic] in SOP showing the process for the inmate to appeal.” Ex. A
to Compl., ECF No. 1-1. The Court in Washington found the availability of a method to
appeal an involuntary medication decision significant to its determination that the
prison’s policy comported with due process.

See Washington, 494 U.S. at 235.

Construing Plaintiff’s complaint liberally, as the Court must at this stage, Plaintiff has
thus alleged that each Defendant denied him the right to appeal his involuntary
medication decisions even though the prison appears to acknowledge that Plaintiff should
have the ability to seek review of those decisions. The Court will accordingly permit
Plaintiff’s involuntary medication claims to proceed for further factual development.
IV.

Conclusion
Based on the foregoing, the Court GRANTS Plaintiff’s motion to proceed in

forma pauperis (ECF No. 2) but DENIES Plaintiff’s motion to appoint counsel at this
time (ECF No. 8). Because Plaintiff has alleged colorable claims against Defendants, the
Court further orders service on Defendants in accordance with the instructions below.
ORDER FOR SERVICE
Having found that Plaintiff has made colorable constitutional violation claims
against Defendants Chatman and Williams, it is accordingly ORDERED that service be
made on these Defendants and that they file an Answer, or such other response as may be
appropriate under Rule 12, 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

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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 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 a change of address may result in the dismissal of a party’s
pleadings.
DUTY TO PROSECUTE ACTION
Plaintiff is also 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 similarly 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, 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
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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.
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 the service
of written discovery requests) shall be completed within 90 days of the date of filing of
an answer or dispositive motion by the 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 the defendant and granted by the court. This 90-day period
shall run separately as to Plaintiff and Defendant beginning on the date of filing of

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Defendants’ 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
The Court shall not consider requests for dismissal of or judgment in this action,
absent the filing of a 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 one hundred - twenty (120) days from when the discovery
period begins unless otherwise directed by the Court.
DIRECTIONS TO CUSTODIAN OF PLAINTIFF
As previously ordered, the Warden of the institution wherein Plaintiff is

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incarcerated, or the Sheriff of any county where 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 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.
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 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. Plaintiff’s Complaint is
subject to dismissal if he has the ability to make monthly payments and fails to do so.

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SO ORDERED this 29th day of June, 2015.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE

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