CASSADY v. DOZIER et al

Filing 7

ORDER REJECTING 5 Report and Recommendations; GRANTING 2 Motion for Leave to Proceed in forma pauperis. The CLERK is ORDERED to forward a copy of this order to the business manager of the facility in which the Plaintiff is confined and DIRECTED to remove Defendant Tom McElhaney and add Defendant Tom McElhenney; SERVICE is ordered on Defendants Angelyn Curry, Gregory Dozier, Sharon Lewis, Tom McElhanney, Michael Pitts, and Cedric Taylor; the Plaintiffs claims against Shawn Emmons are DISMISSED without prejudice; and DISCOVERY is ordered to be complete within 90 days of the filing of an answer or dispositive motion by the Defendants (whichever comes first). Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 3/16/2018. (tlh)

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

DANA MARIE CASSADY,
Plaintiff,
v.
Commissioner GREGORY DOZIER,
et al.,
Defendants.

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CASE NO. 5:17-CV-495 (MTT)

ORDER
After screening the Plaintiff’s complaint pursuant to 28 U.S.C. § 1915A, United
States Magistrate Judge Charles H. Weigle recommends denying the Plaintiff’s motion
for leave to proceed in forma pauperis (Doc. 2) and dismissing the Plaintiff’s complaint
without prejudice because (1) the Plaintiff has already had three or more actions
dismissed on the grounds that they were frivolous, malicious, or failed to state a claim
and accordingly the Prison Litigation Reform Act’s “three strikes” provision applies to the
Plaintiff’s complaint; and (2) the Plaintiff’s complaint does not allege “imminent danger”
sufficient to trigger the imminent danger exception to the “three strikes” provision. Doc.
5. The Plaintiff has objected to the Recommendation, arguing that she has sufficiently
alleged that she faces “imminent danger.” Doc. 6.
Pursuant to 28 U.S.C. 636(b)(1), the Court has considered the objections and
made a de novo determination of the portions to which the Plaintiff objects. As
discussed below, the Court REJECTS the Recommendation (Doc. 5); finds that the
Plaintiff has alleged “imminent danger of serious physical injury” and grounded her

allegations in specific facts sufficient to avoid the “three strikes” provision of the Prison
Litigation Reform Act; GRANTS the Plaintiff’s motion to proceed in forma pauperis; finds
that the Plaintiff states a claim sufficient to survive screening pursuant to the PLRA as to
most of the Defendants; and accordingly ORDERS that service now be made on
Defendants Angelyn Curry, Gregory Dozier, Sharon Lewis, Tom McElhaney,
Michael Pitts, and Cedric Taylor, but the Plaintiff’s claims against Shawn Emmons
are DISMISSED without prejudice.
I. FACTS1
The Plaintiff is a 49-year-old preoperative transgender woman. Doc. 6 at 3. The
Plaintiff has been taking “feminizing hormone therapy and chemical castration
treatments continually since January 2016” to address her gender dysphoria. Doc. 1-1
¶ 4. She seeks injunctive relief based upon Defendants’ failure to provide her with
medical necessary surgery in violation of the Eighth Amendment of the United States
Constitution. Id. ¶ 1.
The Plaintiff claims that on November 3, 2015, she was sent to Augusta State
Medical Prison to treat her gender dysphoria. Id. ¶ 66. There, she was prescribed
hormone therapy and chemical castration treatments, as well as 90-day follow-up
appointments. Id. The Plaintiff claims that the hormone therapy she currently
undergoes, which is acknowledged as medically necessary by the state, presents
serious health risks in light of her medical conditions and the intensification of gender
dysphoria with age. Id. ¶¶ 38-40, 43, 45. She also alleges that the hormone therapy is
not sufficient to address her gender dysphoria, including her greater risk of suicide,

1

All facts are alleged by the Plaintiff’s Complaint and accepted as true for purposes of PLRA screening.

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evidenced by previous suicide attempts and self-mutilation, and that her depression,
hypertension, and “cardioreactivity” are all exacerbated by the stigma of her “gender
and anatomical incongruence.” Id. ¶¶ 41, 44-45, 67. The Plaintiff further alleges that
one mental health care provider, Dr. McKinnon, “unequivocally prescribed [gender
reassignment surgery] as medically necessary for” her, and another, Dr. Duane Harris,
stated in 2015 in the Plaintiff’s mental health progress record that the Plaintiff is “a good
candidate for gender confirming surgery.” Id. ¶¶ 49, 64.
The Plaintiff alleges that she “has made numerous formal and informal requests
for [gender reassignment surgery] since she started on hormones in January 2016.” Id.
¶ 63. The Plaintiff’s claims arise from the Defendants’ denials of those requests. The
Plaintiff alleges that the Defendants have been deliberately indifferent to her medical
needs by refusing to provide her with gender reassignment surgery despite their
knowledge of her “on-going pain and anguish” and her “long history of self-injurious
behavior as related to her failure to obtain [gender reassignment surgery].” Id. ¶¶ 114,
116. The Plaintiff requests injunctive relief and attorney’s fees but not monetary
damages. See id. ¶¶ 134-39.
II. IMMINENT DANGER OF SERIOUS PHYSICAL INJURY
As the Recommendation notes, the Plaintiff has filed multiple lawsuits in federal
court, and at least three of her complaints or appeals have been dismissed on a ground
that constitutes a “strike” under the Prison Litigation Reform Act. Doc. 5 at 2. Pursuant
to the PLRA’s “three strikes provision,” the Plaintiff can therefore only go forward with
her claim in forma pauperis if she alleges an “imminent danger of serious physical
injury.” 28 U.S.C. § 1915(g); Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999).

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To satisfy the “imminent danger” exception, a plaintiff must allege the existence of a
present and imminent danger of serious physical injury. Id. General allegations that are
not grounded in specific facts are not sufficient. Brown v. Johnson, 387 F.3d 1344,
1350 (11th Cir. 2004).
The Recommendation concludes that the Plaintiff’s complaint “does not . . . set
forth any specific facts identifying an imminent danger of serious physical injury as a
result of the denial of surgery.” Doc. 5 at 3. But, liberally construed, the Plaintiff’s
complaint does allege that surgery is “essential” because her hormone therapy, which
she undertakes instead of gender reassignment surgery, is inadequate in the following
ways: (1) it exposes the Plaintiff to heightened health risks due to interactions with her
“chronic obstructed pulmonary disease, asthma, and hypertension;” (2) it will become
increasingly inadequate to deal with gender dysphoria, which the Plaintiff alleges
intensifies with age and is “more pronounced today than ever before” due to her age
and circumstances; (3) as a result, the Plaintiff’s mental health needs are not being
addressed, and her “inability to reduce or modulate [her] internal anguish is likely to
result in emotional decomposition and further self-harm.” Doc. 1-1 ¶¶ 38-40, 43-44.
The Plaintiff alleges a history of self-harm arising from her gender dysphoria. See, e.g.,
id. ¶¶ 67, 113. She also alleges that her treating psychiatrist has “unequivocally
prescribed [gender reassignment surgery] as medically necessary for Plaintiff.” Id. ¶ 49.
For purposes of determining whether the “three strikes” provision applies, the Court
accepts the Plaintiff’s allegations and finds them “grounded in specific facts” sufficient to
satisfy the imminent danger exception, and the Court accordingly REJECTS the
Recommendation. Accordingly, the Court must review the Plaintiff’s Complaint and

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determine whether the Plaintiff’s claims should be dismissed or proceed for factual
development. See 28 U.S.C. § 1915A.
III. MOTION TO PROCEED IN FORMA PAUPERIS
The Plaintiff seeks leave to proceed in this action without paying the Court’s filing
fee. Doc. 2. The PLRA authorizes courts to commence lawsuits without prepayment of
fees if the plaintiff submits an affidavit in support of her claim of indigence and submits a
certified copy of her trust fund account statement for the 6-month period immediately
preceding the filing of the complaint. 28 U.S.C. §§ 1915(a)(1)-(2). The Plaintiff has
done so, and the Court finds that the Plaintiff is unable to pay her filing fee. Docs. 2; 21. Accordingly, the Plaintiff’s motion to proceed in forma pauperis (Doc. 2) is
GRANTED. This does not mean that the filing fee is waived; federal law requires that
Plaintiff still pay the full filing fee over time, using the payment plan described in 28
U.S.C. § 1915(b) and directed below. The CLERK is therefore ORDERED to forward a
copy of this order to the business manager of the facility in which Plaintiff is confined so
that withdrawals from her account may commence as payment to the Court’s filing fee.
IV. PRELIMINARY SCREENING
A.

Standard on Screening
The PLRA also requires the Court screen the Plaintiff’s Complaint and dismiss

the Complaint if the Court determines that it is frivolous or malicious, fails to state a
claim on which relief may be granted, or seeks monetary relief against a defendant who
is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. §§ 1915A(b)(1)-(2).
But, when screening a complaint under the PLRA, the Court must accept all factual
allegations in the complaint as true. Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir.

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2006); Hughes v. Lott, 350 F.3d 1157, 1159-60 (11th Cir. 2003). Pro se pleadings are
“held to a less stringent standard than pleadings drafted by attorneys and will, therefore,
be liberally construed.” Boxer X, 437 F.3d at 1110 (internal quotation marks omitted).
A complaint fails to state a claim on which relief may be granted 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. 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.
B.

Requirements for a Deliberate Indifference to Medical Needs § 1983 Claim
A claimant is entitled to relief under 42 U.S.C. § 1983 if he or she can prove that

a person acting under color of state law deprived him or her of a federal right. Almand
v. DeKalb Cty., 103 F.3d 1510, 1513 (11th Cir.1997). Under the Eighth Amendment,
state actors are prohibited from inflicting cruel and unusual punishment, such as
punishments that are “totally without penological justification.” Rhodes v. Chapman,
452 U.S. 337, 346 (1981) (internal quotation marks omitted). Courts examine whether
prison officials “acted with deliberate indifference to the inmates’ health or safety.”
Hope v. Pelzer, 536 U.S. 730, 737-38 (2002) (internal quotation marks omitted).
Generally, supervisors are not liable under § 1983 for the constitutional violations of

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their subordinates. Miller v. King, 384 F.3d 1248, 1261 (11th Cir. 2004). But
supervisors are liable if either (1) they personally participate in the alleged constitutional
violation, or (2) a causal connection exists between their actions and the alleged
constitutional deprivation. Id.
“To show that a prison official acted with deliberate indifference to serious
medical needs, a plaintiff must satisfy both an objective and a subjective inquiry.”
Mitchell v. Nobles, 873 F.3d 869, 876 (11th Cir. 2017) (quoting Brown, 387 F.3d at
1351); see also Estelle v. Gamble, 429 U.S. 97, 104 (1976) (holding that a deliberate
indifference to a prisoner's medical needs violates the Eighth Amendment). The plaintiff
must prove that she had an objectively serious medical need, and that the prison official
acted with deliberate indifference to that need. Id. (quoting Brown, 387 F.3d at 1351).
C.

Assessing the Plaintiff’s Complaint
The Court must determine whether the Plaintiff’s Complaint states a claim upon

which relief may be granted that (1) she has an objectively serious medical need, and
(2) the Defendants acted with deliberate indifference to that need.
1. Serious Medical Need
On screening, the Court cannot find that the Plaintiff has failed to state a claim
that her gender dysphoria is an objectively serious medical need. A “serious medical
need” is a condition that either (1) has been diagnosed by a physician as requiring
treatment, or (2) is so obvious that a lay person would easily recognize the need for
medical attention. Mitchell, 873 F.3d at 876 (citation omitted). Accepting all factual
allegations as true and liberally construing the Plaintiff’s Complaint, the Plaintiff’s
Complaint has met this requirement. See generally Doc. 1-1 (documenting the

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Plaintiff’s mental and physical health issues arising from her gender dysphoria, as well
as her diagnoses from health care professionals); Boxer X, 437 F.3d at 1110 (outlining
district courts’ standard for considering pro se complaints).
2. Deliberate Indifference
Accordingly, the Court next examines whether the Plaintiff’s claims should be
dismissed on screening for failure to state a claim that any Defendants acted with
deliberate indifference to the serious medical need. A prison official acts with deliberate
indifference to an inmate’s serious medical need when (1) he has subjective knowledge
of a risk of serious harm; (2) he disregards that risk; and (3) he disregards the risk “by
conduct that is more than mere negligence.” Mitchell, 873 F.3d at 876 (citation omitted).
The Plaintiff alleges that the following Defendants were deliberately indifferent to her
medical needs in violation of the Eighth Amendment: Angelyn Curry, Gregory Dozier,
Shawn Emmons, Sharon Lewis, Tom McElhaney, Michael Pitts, Cedric Taylor, and
“Does 1-30.” Doc. 1 at 1. The Plaintiff alleges that the Defendants “fail[ed] to intercede
and grant Plaintiff[‘s] medically necessary [gender reassignment surgery] and . . .
fail[ed] to ensure that [the Georgia Department of Corrections (GDOC)]’s policies
surrounding the provision for medical treatment are implemented in a fair and nondiscriminatory manner and/or that inmates receive medically necessary treatment for
gender dysphoria, including [gender reassignment surgery] in appropriate cases.” Doc.
1-1 ¶ 124. The Court discusses the Plaintiff’s claims against each of the seven named
Defendants, in turn.
The Plaintiff alleges that Defendant Curry “is currently employed by the GDOC
Inmate Affairs and Ombudsman Unit in Forsyth, Georgia.” Id. ¶ 9. The Plaintiff alleges

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that Curry (1) evaluated the Plaintiff’s grievance appeal, which denied her request for
gender reassignment surgery, as Defendant Dozier’s “appointed proxy;” (2) received a
letter from the Plaintiff, in addition to the appeal, “outlining her reasons why [gender
reassignment surgery] is necessary treatment for her gender dysphoria;” but
nevertheless (3) recommended the Plaintiff’s appeal be referred to Defendant Lewis
despite Lewis’s lack of “significant experience or training in the treatment of transsexual
patient[s]” and lack of qualifications “to make a determination with regards to the
medical necessity of [gender reassignment surgery].” Id. ¶¶ 97-98, 104, 107.
According to the Plaintiff, this constitutes deliberate indifference to her medical needs.
Id. ¶ 128.
The Plaintiff alleges that Defendant Dozier is Commissioner of GDOC and in that
role “has ultimate responsibility and authority for the overall management administration
and operation of the GDOC, and [is] charged with evaluated grievance appeals with the
authority to grant or deny the relief requested in the appeals.” Id. ¶ 5. The Plaintiff
further alleges that Dozier evaluated her grievance appeal “through [Dozier’s] appointed
proxy, Defendant Curry,” denied the grievance without considering the medical opinions
of the Plaintiff’s mental health care providers; “over-rode [sic] the recommendations by
deliberately seeking out a contrary opinion” from a psychiatrist without experience in
treating gender dysphoria; and denied the Plaintiff’s medically necessary surgery with
“unreasonable and wanton disregard for appropriate treatment,” despite having
“ultimate authority” for determining whether the Plaintiff should receive surgery. Id. ¶¶
97, 118-24. In sum, the Plaintiff alleges that Dozier was “deliberately indifferent to
Plaintiff’s medical need for [gender reassignment surgery]” by failing “to take any

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reasonable measures to address the ongoing mental anguish that Plaintiff suffers as a
result of her gender dysphoria, which is not fully addressed by the feminizing hormone
therapy and chemical castration treatments that Plaintiff has been receiving for the past
25 months.” Id. ¶ 122.
The Plaintiff alleges that Defendant Emmons served as the Warden of Johnson
State Prison, “at which facility Plaintiff was housed during the infancy of the issues
contained herein,” and in this capacity was responsible for reviewing and deciding
prisoners’ grievances. Id. ¶ 8. The Plaintiff further alleges that she filed a grievance
with Emmons, seeking gender reassignment surgery, and that Emmons denied the
request on August 16, 2016 despite being “fully aware that Plaintiff faces a serious
medical need for [gender reassignment surgery].” Id. ¶¶ 86, 89-92, 94-97. But,
according to the Plaintiff’s Complaint, she was transferred to Baldwin State Prison on
September 23, 2016. Id. ¶ 102. When a prisoner is transferred from a prison, the
prisoner’s claims for prospective remedies as to the allegedly wrongful conduct in that
prison become moot. See Wahl v. McIver, 773 F.2d 1169, 1173 (11th Cir. 1985)
(“Absent class certification, an inmate’s claim for injunctive and declaratory relief in a [§]
1983 action fails to present a case or controversy once the inmate has been
transferred.” (citation omitted)); Davila v. Marshall, 649 F. App’x 977 979-80 (11th Cir.
2016) (“[A] prisoner’s request for injunctive relief relating to the conditions of his
confinement becomes moot when he is transferred.” (citing Spears v. Thigpen, 846 F.2d
1327, 1328 (11th Cir. 1988)). The Plaintiff therefore fails to state a claim upon which
relief may be granted against Emmons, because according to the Complaint Emmons is
the warden of Johnson State Prison and not Baldwin State Prison, where the Plaintiff is

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confined. Accordingly, the Plaintiff’s claims against Emmons are DISMISSED without
prejudice.
The Plaintiff alleges that Defendant Lewis served as GDOC’s State Medical
Director, “with responsibility for ensuring the administration of health care and the
execution of policies governing medical care for all GDOC facilities as well as evaluating
grievance appeals of prisoners referred by Inmate Affairs, with absolute authority to
grant or deny the relief requested in the appeals.” Doc. 1-1 ¶ 11. The Plaintiff further
alleges that her grievance appeal was referred to Lewis on Defendant Curry’s
recommendation and that Lewis denied her appeal, failing to consider or address the
opinion of the Plaintiff’s mental health care providers that gender reassignment surgery
was necessary. Id. ¶¶ 104, 113, 118, 120, 124. Matching her allegations against
Defendant Dozier, the Plaintiff alleges that Lewis was “deliberately indifferent to
Plaintiff’s medical need for [gender reassignment surgery]” by failing “to take any
reasonable measures to address the ongoing mental anguish that Plaintiff suffers as a
result of her gender dysphoria, which is not fully addressed by the feminizing hormone
therapy and chemical castration treatments that Plaintiff has been receiving for the past
25 months.” Id. ¶ 122.
The Plaintiff alleges that Defendant McElhenney served as Deputy Director of
Medical Services for GDOC, and in that capacity was responsible for ensuring the
operation of medical care in GDOC facilities and, like the preceding Defendants, was
entrusted with the authority to evaluate relevant grievance appeals. Id. ¶ 10.2 The

2

The caption of the Plaintiff’s Complaint spells McElhenney’s name “McElhaney.” Doc. 1 at 1. But the
Complaint alleges the name “McElhenney.” See, e.g., Doc. 1-1 ¶ 10. Accordingly, the Clerk of Court is
DIRECTED to CHANGE “Tom McElhaney” to “Tom McElhenney.”

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Plaintiff further alleges that McElhenney denied her formal request for gender
reassignment surgery, despite being informed by the Plaintiff’s mental health care
provider that such surgery was necessary, and that McElhenney “entirely ignored and
thereby denied Plaintiff’s formal request for surgery” without reviewing the Plaintiff’s
medical and mental health records or personally interviewing the Plaintiff or her treating
mental health care providers. Id. ¶¶ 74-75, 80-82. The Plaintiff argues that
McElhenney’s denial shows a “blanket custom and/or axiom of prohibiting [gender
reassignment surgery] for transgender individuals, in direct disregard for universally
accepted standards of medically necessary treatment,” and that McElhenney “failed to
take any reasonable measures to address the ongoing mental anguish that Plaintiff
suffers as a result of her gender dysphoria.” Id. ¶¶ 83-86.
The Plaintiff alleges that Defendant Pitts served as Psychologist and Clinical
Director at Baldwin State Prison. Id. ¶ 7. The Plaintiff further alleges that Pitts failed to
respond to the Plaintiff’s three written correspondences in which she shared her medical
needs arising from gender dysphoria, failed to discuss the Plaintiff’s case with
Defendant Lewis as he promised, failed to take steps to ensure the other Defendants
had knowledge of the Plaintiff’s ongoing symptoms of gender dysphoria, and “simply
chose to ignore Plaintiff[‘]s serious need for [gender reassignment surgery] and her
obvious high risk of suicide,” despite knowledge of the Plaintiff’s “significant signs of
distress and anxiety” and her stated suicidal thoughts. Id. ¶¶ 103, 105, 110-11, 114-17.
Finally, the Plaintiff alleges that Defendant Taylor served as Warden of Baldwin
State Prison, and in that capacity was responsible for the operation of the prison and
the welfare of its inmates. Id. ¶ 6. The Plaintiff further alleges that, despite her written

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correspondence and conversations in which she explained her suicidal thoughts to
Taylor, Taylor told her that there was nothing more he could do for her, failed to take
steps to ensure the other Defendants had knowledge of the Plaintiff’s ongoing
symptoms of gender dysphoria, and failed to take steps to ensure her safety. Id. ¶¶
108-09, 112, 114-17, 125.
In sum, liberally construed, the Plaintiff’s Complaint alleges that each Defendant
(1) had subjective knowledge of the Plaintiff’s risk of serious harm from her gender
dysphoria; (2) disregarded that risk by denying gender reassignment surgery; and (3)
did so “by conduct that [wa]s more than mere negligence.” Mitchell, 873 F.3d at 876
(citation omitted). Accordingly, the Plaintiff has met her pleading burden, and her
Complaint should survive screening pursuant to the PLRA as to her claims against all
Defendants except for Emmons, as discussed above. See id. (reversing a district
court’s dismissal of a complaint that alleged prison officials knew of the plaintiff’s
hepatitis C diagnosis and cirrhosis but failed to provide him with treatment); see also
Woods v. Miller, 215 F. App’x 796, 798 (11th Cir. 2007) (reversing district court’s
dismissal of a complaint on screening when the complaint alleged that the defendants
gave the plaintiff grossly inadequate care for his back condition).
D.

Service
Because the Court finds that the Plaintiff’s claims against six of the Defendants

should survive screening pursuant to the PLRA, it is hereby ORDERED that service
now be made on Defendants Angelyn Curry, Gregory Dozier, Sharon Lewis, Tom
McElhanney, Michael Pitts, and Cedric Taylor and that they file an Answer, or other
response as appropriate under the Federal Rules, 28 U.S.C. § 1915, and the Prison

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Litigation Reform Act. Those Defendants are also reminded of the duty to avoid
unnecessary service expenses and the possible imposition of expenses for failure to
waive service. However, the Plaintiff’s claims against Shawn Emmons are
DISMISSED without prejudice.
V. INSTRUCTIONS TO THE PARTIES
The parties are hereby noticed that they have certain obligations to the Court, as
discussed below.
A.

Duty to Advise of Address Change
During 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.
B.

Duty to Prosecute Action
The Plaintiff must diligently prosecute her 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. The 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.
C.

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

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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.).
D.

Discovery
The Plaintiff shall not commence discovery until an answer or dispositive motion

has been filed on behalf of the Defendants from whom discovery is sought. The
Defendants shall not commence discovery until 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 Plaintiff’s deposition may be taken at any time during the time period
hereinafter set out, provided that prior arrangements are made with her custodian. The
Plaintiff is hereby advised that failure to submit to a deposition may result in the
dismissal of her lawsuit under Federal Rule of Civil Procedure 37.
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 Defendants and granted by the Court. This 90-day

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period shall run separately as to 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 or served upon him by the
opposing counsel or party. The Court incorporates those parts of the Local Rules
imposing the following limitations on discovery: except with written permission of the
Court, INTERROGATORIES may not exceed 25 to each party, REQUESTS FOR
PRODUCTION OF DOCUMENTS AND THINGS under Rule 34 of the Federal Rules of
Civil Procedure may not exceed 10 requests for each party, and REQUESTS FOR
ADMISSIONS under Rule 36 of the Federal Rules of Civil Procedure may not exceed
15 requests to each party. No party is required to respond to any request which
exceeds these limitations.
E.

Requests for Dismissal and/or Judgment
Dismissal of this action or requests for judgment will not be considered by the

Court in the absence of a separate motion accompanied by a brief or memorandum of
law citing supporting authorities. These dispositive motions should be filed at the
earliest time possible, but no later than 120 days from the beginning of the discovery
period.
F.

Directions to Custodian of Plaintiff
Following the payment of the required filing fee or waiving of the same, the

Warden of the institution wherein the Plaintiff is incarcerated, or the Sheriff of any

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county wherein she is held in custody, and any successor custodians, shall each month
cause to be remitted to the Clerk of this Court 20% of the preceding month’s income
credited to the Plaintiff’s account at said institution until the filing fee has been paid in
full. 28 U.S.C. §§ 1915(b)(1)-(2). In accordance with the PLRA, the Plaintiff’s custodian
is AUTHORIZED to forward payments from the Plaintiff’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. Id. It is also ORDERED that the collection of monthly payments from the
Plaintiff’s trust account continue until the entire $350.00 has been collected,
notwithstanding the dismissal of the Plaintiff’s lawsuit or the granting of judgment
against her prior to the collection of the full filing fee.
G.

Plaintiff’s Obligation to Pay Filing Fee
Pursuant to the PLRA, in the event the Plaintiff is hereafter released from the

custody of the State of Georgia or any county thereof, she shall remain obligated to pay
any balance due on the filing fee in this proceeding until said amount has been paid in
full. See 28 U.S.C. § 1915(b)(1) (“[I]f a prisoner brings a civil action or files an appeal in
forma pauperis, the prisoner shall be required to pay the full amount of a filing fee.”).
The Plaintiff shall continue to remit monthly payments as required by the PLRA.
Collection from the Plaintiff of any balance due on the filing fee by any means permitted
by law is hereby authorized in the event the Plaintiff is released from custody and fails
to remit payments. In addition, the Plaintiff is on notice that her complaint is subject to
dismissal if she has the ability to make monthly payments and fails to do so.

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VI. CONCLUSION
As discussed above, the Recommendation (Doc. 5) is REJECTED; the Plaintiff’s
motion to proceed in forma pauperis (Doc. 2) is GRANTED; the CLERK is ORDERED
to forward a copy of this order to the business manager of the facility in which the
Plaintiff is confined and DIRECTED to remove Defendant “Tom McElhaney” and add
Defendant “Tom McElhenney;” SERVICE is ordered on Defendants Angelyn Curry,
Gregory Dozier, Sharon Lewis, Tom McElhanney, Michael Pitts, and Cedric
Taylor; the Plaintiff’s claims against Shawn Emmons are DISMISSED without
prejudice; and DISCOVERY is ordered to be complete within 90 days of the filing of
an answer or dispositive motion by the Defendants (whichever comes first).
SO ORDERED, this 16th day of March, 2018.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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