EDWARDS v. BROWN et al

Filing 6

ORDER granting 2 MOTION for Leave to Proceed in forma pauperis filed by TREVONTE EDWARDS, denying 3 MOTION to Appoint Counsel filed by TREVONTE EDWARDS. ORDER Directing Service re 1 Complaint filed by TREVONTE EDWARDS. Ordered by US MAGISTRATE JUDGE STEPHEN HYLES on 6-3-15. (mpm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
TREVONTE EDWARDS,

:
:
Plaintiff.
:
:
VS.
:
:
Officer CAMERON BROWN and
:
Officer BOWMAN,
:
:
Defendants.
:
_________________________________:

NO. 5:15-CV-191-MTT-MSH

ORDER
Plaintiff Trevonte Edwards, currently an inmate at Georgia State Prison (“GSP”),
has filed a pro se 42 U.S.C. § 1983 lawsuit. (ECF No. 1.) Plaintiff has also filed a
motion to proceed in forma pauperis and a request for appointment of counsel. (ECF Nos.
2, 3.)
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 required to pay the full filing fee, as is discussed
below. The Clerk of Court is directed to send a copy of this Order to the business manager
of GSP.
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 that “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”).
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.”

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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.
1581 (11th Cir. 1995).

Hale v. Tallapoosa County, 50 F.3d 1579,

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 complains about an incident that occurred during his former confinement at
Hancock State Prison (“HSP”). He sues Defendant HSP Officers Brown and Bowman for
allegedly failing to intervene when Plaintiff was physically assaulted by his roommate on
February 16, 2015. Plaintiff states that he screamed for help and the Defendants came to
the cell and watched the assault without taking any action. Compl. 5, ECF No. 1. The
Defendants then allegedly left the scene and returned twice while the assault continued.
Id. As the Defendant Officers watched the fight, Bowman allegedly stated, “that’s good
for his ass[.]

[Plaintiff] need[ed] to get beat up.” Id.

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According to Plaintiff, his

roommate is HIV positive and he bit Plaintiff twice. Compl. 5-6.
These allegations, when liberally construed in Plaintiff’s favor, are sufficient to
allow Plaintiff to go forward with Eighth Amendment claims against Defendant Officers
Brown and Bowman.1 See Terry v. Bailey, 376 F. App’x 894, at *2 (11th Cir. Apr. 27,
2010) (prison officials may be held liable for failing to intervene in an inmate fight, if the
officials are in a position to do so). It is therefore 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 of the Federal Rules of Civil Procedure, 28 U.S.C. § 1915, and the Prison
Litigation Reform Act. Defendants are also 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).
MOTION FOR APPOINTMENT OF COUNSEL
With regard to Plaintiff’s motion for appointment of counsel, 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” in a section 1983 lawsuit. Poole v. Lambert, 819 F.2d 1025, 1028 (11th Cir.
1987).

Appointment of counsel is a privilege that is justified only by exceptional

1

It is unclear whether Plaintiff fully exhausted his administrative remedies. Plaintiff filed a
grievance at HSP and may have been unable to appeal the grievance denial due to his transfer to
GSP. See Dollar v Coweta County Sheriff’s Office, 2011 WL 5429086 at *3 (11th Cir. Nov. 10,
2011) (“[I]t is not apparent from the face of the complaint that Dollar could use the grievance
procedures at Wilcox State Prison to grieve conditions and treatment at the Coweta County Jail,
much less that Dollar knew or should have known that he could do so.”). The Court thus will not
dismiss Plaintiff’s complaint for lack of exhaustion prior to service.

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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 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 Court will determine whether Plaintiff’s allegations support a colorable
legal claim. This process is routine in pro se prisoner actions and therefore “exceptional
circumstances” justifying appointment of counsel do not exist. Accordingly, Plaintiff’s
motion is DENIED.
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.
DUTY TO PROSECUTE ACTION
Plaintiff 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 may
result in the dismissal of his lawsuit under Rule 37 of the Federal Rules of Civil
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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 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 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
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.
DIRECTIONS TO CUSTODIAN OF PLAINTIFF
In accordance with the Prison Litigation Reform Act, Plaintiff’s custodian is hereby
directed to remit to the Clerk of this Court each month twenty percent (20%) of the
preceding month’s income credited to Plaintiff’s inmate account until the $350.00 filing
fee has been paid in full, provided the amount in the account exceeds $10.00. Transfers
from Plaintiff’s account shall continue until the entire filing fee has been collected,
notwithstanding the earlier dismissal of Plaintiff’s lawsuit.
PLAINTIFF’S OBLIGATION TO PAY FILING FEE
If Plaintiff is hereafter released from custody, he shall remain obligated to pay any
remaining balance due of the above filing fee; Plaintiff shall continue to remit monthly
payments as required by the Prison Litigation Reform Act. Collection from Plaintiff of
any balance due by any means permitted by law is hereby authorized in the event Plaintiff
fails to remit payments.
SO ORDERED, this 3rd day of June, 2015.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE
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