Akins v. Nix et al

Filing 22

ORDER AND ORDER granting in part and denying in part 21 Motion to Compel; the Board of Pardons and Paroles, the Board of Corrections, and the Department of Corrections are DISMISSED from this action. The Clerk is directed to add Wayne Dasher, Bruc e Hudson, Carlton Powell, Wayne Garner, and Bobby K. Whitworth as Defendants. Plaintiff is directed to complete and return within 20 days a USM 285 form and summons for each additional Defendant. Upon receipt of forms, the Clerk is DIRECTED to prep are a service waiver package for each Defendant. In the event a Defendant does not return the Waiver of Service form to the Clerk of Court within Thirty-five(35) days following the date the service waiver package was mailed, the Clerk is DIRECTED to prepare and transmit to the U.S. Marshal's Service a service package for each Defendant who failed to return the waiver form.. Signed by Judge Thomas W. Thrash, Jr on 10/16/09. (dr)

FILED IN CHAMBEF THOAAAS W. TH RASM U. S.D. C. Atlanta

OCT 1 6 209
JAMES N . HAT 1' N, Cle r IN THE UNITED STATES DISTRICT C OUR WT Deputy FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

CHE STER T. AKINS , Plaintiff,
V.

PRISONER CIVIL RIGHTS 42 U.S .C . § 1983

MILTON E . (BUDDY) NIX, JR ., CIVIL ACTION NO . et al ., 1 :09-CV-0575-TWT Defendants . ORDER and OPINION
This Court previously allowed Plaintiff to proceed on his claim that various

members or former members of the Georgia Board of Pardons and Paroles and the
Georgia Department of Corrections are in contempt of a prior consent agreement with

Plaintiff . (Doc . No . 4 at 6-7.) The matter is before the Court on Plaintiffs motion to compel the Clerk's Office to furnish him with an additional eight USM 285 forms and summonses . (Doc . No. 21 .) Plaintiff states that he only received six forms and summonses, although he named fourteen Defendants . {I d .} In his complaint, Plaintiff
named as Defendants : Milton E . (Buddy) Nix, Jr . ; James E . Donald ; Robert E . Keller ; L . Gale Buckner ; Garland R . Hunt, Esq . ; Garfield Hammonds, Jr . ; Wayne Dasher ;

Bruce Hudson ; Carlton Powell ; Wayne Garner; Bobby K. Whitworth; the Board of

AO 72A ( Rev .8/82)

Pardons and Paroles ; the Board of Corrections ; and the Department of Corrections . (Dac . No. I at 1, 3, 19, 22, 24, 31-34 .) The Eleventh Amendment bars any action, regardless of the relief sought, against the Georgia Department of Corrections and Board of Corrections, state
entities . See Stevens v . Gay, 864 F .2d 113, 115 (1 lth Cir . 1989)) . Additionally, the

Eleventh Amendment bars any action, whether for damages or equitable relief, against state entities such as the Board of Pardons and Paroles . See Fuller v . Georgia State Bd . of Pardons and Paroles, 851 F .2d 1307, 1309 (1 lth Cir. 1988) ; see also Cory White, 457 U.S . 85, 90-91 (1982) . The entities protected by Eleventh Amendment immunity are due to be dismissed . Otherwise, for good cause shown, Plaintiffs motion shall be granted . For the reasons stated above, I T I S ORDE RED that Plaintiff's motion to compel the Clerk's Office (Doc .
No . 21) is D E NI ED in part, and the Board of Pardons and Paroles, the Board of

Corrections, and the Department of Corrections are DI S MI SSE D from this action, IT IS FURTHER ORDERED that Plaintiff's motion (Doc . No. 21) is GRANTED in part, and the Clerk of Court is DIR ECTE D to add Wayne Dasher, Bruce Hudson, Canton Powell, Wayne Garner, and Bobby K . Whitworth as Defendants in this action . 2

A O 72 A (Rev.8182)

The Clerk is FURTHER DIRECTED to send Plaintiff a USM 285 form and summons for each of the five additional Defendants . Plaintiff is DIRECTED to complete a USM 285 form and summons for each additional Defendant . Plaintiff is DIRECTED to return the comp l eted material to the Clerk of Court within twenty (20)
days from the entry date of this Order . Plaintiff is warned that failure to comply in a

timely manner could result in the dismissal of the additional five Defendants . The Clerk is DIREC T ED to resubmit this action to the undersigned if Plaintiff fails to
comply .

Upon receipt of the forms by the Clerk, the Clerk is DIRE C TE D to prepare a service waiver package for each Defendant . The service waiver package must include, for each Defendant, two (2) Notices of Lawsuit and Request for Waiver of Service of Summons (prepared by the Clerk), two (2) Waiver of Service of Summons forms (prepared by the Clerk), an envelope addressed to the Clerk of Court with adequate first class postage for use by each Defendant for return of the waiver form, one ( 1 )
copy of the complaint, one (1) copy of the initial disclosures form, and one (1) copy

of this Order. The Clerk shall retain the USM 285 forms and the summonses .
Upon completion of the service waiver packages, the Clerk is DIR EC T E D to

complete the lower portion of the Notice of Lawsuit and Request for Waiver form and 3

AO 72A (Rev.8/82)

to mail the service waiver packages to each Defendant . Defendants have a duty to
avoid unnecessary costs of serving the summons . If a Defendant fails to comply with

the request for waiver of service, that Defendant must bear the costs of personal service unless good cause can be shown for failure to return the Waiver of Service form .
In the event a Defendant does not return an executed Waiver of Service form

to the Clerk of Court within thirty-five (3 5) days following the date the service waiver
package was mailed, the Clerk is DIRE C TE D to prepare and transmit to the U .S .

Marshal's Service a service package for each Defendant who failed to return an executed waiver form. The service package must include the USM 285 form, the
summons, and one ( 1 ) copy of the complaint . Upon receipt of the service packages,

the U .S . Marshal's Service is DIRECTED to personally serve each Defendant who
failed to waive service . The executed waiver form or the completed USM 285 form

shall be filed with the Clerk . IT IS SO ORDERED , this / 4 day of AL, ; ~ 12009 .

THOMAS W . THRASH UNITED STATES DISTRICT JUDGE 4

AO 72A (Rev.8/82)