Davila v. Marshall et al
Filing
11
ORDER that a copy of Plaintiff's Complaint and a copy of this Order shall be served upon Defendants Marshal and Durden by the United States Marshal. Signed by Magistrate Judge James E. Graham on 1/23/2013. (csr)
FILED
,
COURT
IN THE UNITED STATES DISTRICT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION O3 JAN 23 \
ANTHONY DAVILA,
Plaintiff,
CIVIL ACTION NO.: CVII2-149
V.
LOGAN MARSHALL, Sheriff, and
FNU DURDEN, Captain,
Defendants
ORDER and MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Plaintiff, who is currently housed at McDuffie County Detention Center in
Thomson, Georgia, filed a cause of action pursuant to 42 U.S.C. § 1983 and the
Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc-I, et
seq. ("RLUIPA"), contesting certain conditions of his confinement. A prisoner
proceeding in a civil action against officers or employees of government entities must
comply with the mandates of the Prison Litigation Reform Act, 28 U.S.C. §§ 1915 &
1915A. In determining compliance, the court shall be guided by the longstanding
principle that pro se pleadings are entitled to liberal construction. Haines v. Kerner, 404
U.S. 519, 520 (1972); Walker v. Duger, 860 F.2d 1010, 1011 (11th Cir. 1988).
28 U.S.C. § 1915A requires a district court to screen the complaint for cognizable
claims before or as soon as possible after docketing. The court must dismiss the
complaint or any portion of the complaint that is frivolous, malicious, fails to state a
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claim upon which relief may granted, or seeks monetary damages from a defendant
who is immune from such relief. 28 U.S.C. § 1915A(b)(1) and (2).
In Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997), the Eleventh Circuit
interpreted the language contained in 28 U.S.C. § 1915(e)(2)(B)(ii), which is nearly
identical to that contained in the screening provisions at § 1915A(b). As the language of
§ 1915(e)(2)(B)(ii) closely tracks the language of Federal Rule of Civil Procedure
12(b)(6), the court held that the same standards for determining whether to dismiss for
failure to state a claim under Rule 12(b)(6) should be applied to prisoner complaints
filed pursuant to § 1915(e)(2)(B)(ii). Mitchell, 112 F.3d at 1490. While the court in
Mitchell interpreted § 1915(e), its interpretation guides this court in applying the identical
language of § 1915A.
Plaintiff contends that Defendants Marshal and Durden have not allowed him to
have Santeria beads, cowrie shells, or his bible. Plaintiff asserts that these items are
necessary to the practice of his religion. Plaintiff also asserts that inmates who are of
other faiths are allowed to have their religious items.' Plaintiff names Defendants
Marshal and Durden in their individual and official capacities.
Plaintiffs claims against the individually named Defendants in their official
capacities should be dismissed. A lawsuit against officials in their official capacities is
no different from a suit against the government itself; such defendants are immune.
Smith v. Fla. Dep't of Corr., 318 F. App'x 726, 728 (11th Cir. 2008) (citing Powell v.
Barrett, 496 F.3d 1288, 1308 & n.27 (11th Cir. 2007)). Thus, Plaintiffs claims against
Defendants Marshal and Durden in their official capacities should be DISMISSED.
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Plaintiffs claims in this cause of action differ from those alleged in Case Number CV212-5. In CV212-5,
Plaintiff challenged the Bureau of Prisons' policy, which prohibited Plaintiff from being able to obtain his
shells and beads from a source Plaintiff deemed appropriate.
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However, prisoners "retain the right to the free exercise of religion" under the
First Amendment. United States v. Baker, 415 F.3d 1273, 1274 (11th Cir. 2005). As
the Supreme Court has emphasized, "[p]rison walls do not form a barrier separating
prison inmates from the protections of the Constitution." Thornburgh v. Abbott, 490 U.S.
401, 407 (1989) (quoting Turner v. Safley, 482 U.S. 78, 84 (1987)). Plaintiff arguably
states a First Amendment claim.
Additionally, equal protection principles require generally that government
officials behave in a way such "that all persons similarly situated should be treated
alike." Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985). "To
establish an equal protection claim, a prisoner must demonstrate that (1) he is similarly
situated with other prisoners who received more favorable treatment; and (2) his
discriminatory treatment was based on some constitutionally protected interest." Jones
v. Ray, 279 F.3d 944, 946-47 (11th Cir. 2001) (internal citation and punctuation
omitted). Plaintiff arguably states an equal protection claim.
Further,
No government shall impose a substantial burden on the religious
exercise of a person residing in or confined to an institution, as defined in
section 1997 of [Title 42], even if the burden results from a rule of general
applicability, unless the government demonstrates that imposition of the
burden on that person(1) is in furtherance of a compelling government interest; and
(2) is the least restrictive means of furthering that compelling
government interest.
42 U.S.C. § 2000cc-I (a). Plaintiff arguably states a claim under the RLUIPA.
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These allegations, when read in a light most favorable to the Plaintiff, arguably
state colorable claims for relief against Defendants Marshal and Durden. A copy of
Plaintiff's Complaint and a copy of this Order shall be served upon Defendants Marshal
and Durden by the United States Marshal without prepayment of cost. If either
Defendant elects to file a Waiver of Reply, then he must file either a dispositive motion
or an answer to the complaint within thirty (30) days of the filing of said Waiver of Reply.
INSTRUCTIONS TO DEFENDANTS
Since the Plaintiff is authorized to proceed in forma pauperis, service must be
made by the United States Marshal. FED. R. Civ. P. 4(c)(3). In most cases, the marshal
will first mail a copy of the complaint to the Defendants by first-class mail and request
that the Defendants waive formal service of summons. FED. R. Civ. P. 4(d); Local Rule
4.5. Individual and corporate defendants have a duty to avoid unnecessary costs of
serving the summons, and any such defendant who fails to comply with the request for
waiver must bear the costs of personal service unless good cause can be shown for the
failure to return the waiver. FED. R. Civ. P. 4(d)(2). Generally, a defendant who timely
returns the waiver is not required to answer the complaint until sixty (60) days after the
date that the marshal sent the request for waiver. FED. R. Civ. P. 4(d)(3).
IT IS FURTHER ORDERED that Defendants are hereby granted leave of court to
take the deposition of the Plaintiff upon oral examination. FED. R. Civ. P. 30(a). The
Defendants shall ensure that the Plaintiff's deposition and any other depositions in the
case are taken within the 140-day discovery period allowed by this court's local rules.
Local Rule 26.1(d)(i).
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In the event Defendants take the deposition of any other person, they are
ordered to comply with the requirements of Federal Rule of Civil Procedure 30 as set
forth herein. As the Plaintiff will likely not be in attendance for such a deposition, the
Defendants shall notify Plaintiff of the deposition and advise him that he may serve on
the Defendants, in a sealed envelope, within ten (10) days of the notice of deposition,
written questions the Plaintiff wishes to propound to the witness, if any. The Defendants
shall present such questions to the witness seriatim during the deposition. FED. R. Civ.
P. 30(c).
INSTRUCTIONS TO PLAINTIFF
IT IS FURTHER ORDERED that Plaintiff shall serve upon Defendants or, if
appearance has been entered by counsel, upon their attorneys, a copy of every further
pleading or other document submitted for consideration by the court. Plaintiff shall
include with the original paper to be filed with the Clerk of Court a certificate stating the
date on which a true and correct copy of any document was mailed to Defendants or
counsel. FED. R. Civ. P. 5. "Every pleading shall contain a caption setting forth the
name of the court, the title of the action, [and] the file number." FED. R. Civ. P. 10(a).
Any paper received by a district judge or magistrate judge which has not been filed with
the Clerk or which fails to include a caption or a certificate of service will be disregarded
by the court and returned to the sender.
Plaintiff is charged with the responsibility of immediately informing this Court and
defense counsel of any change of address during the pendency of this action. Local
Rule 11.1. Failure to do so may result in dismissal of this case.
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Plaintiff has the responsibility for pursuing this case. For example, if Plaintiff
wishes to obtain facts and information about the case from Defendants, Plaintiff must
initiate discovery. See generally FED. R. Civ. P. 26, et seq. Plaintiff does not need the
permission of the court to begin discovery, and Plaintiff should begin discovery promptly
and complete it within 140 days after the filing of the answer. Local Rule 26.1(d)(i).
Interrogatories are a practical method of discovery for incarcerated persons. See
FED. R. Civ. P. 33. Interrogatories may be served only on a Darty to the litigation, and,
for the purposes of the instant case, this means that interrogatories should not be
directed to persons or organizations who are not named as a Defendant. Interrogatories
shall not be filed with the court. Local Rule 26.4. Interrogatories are not to contain
more than twenty-five (25) questions. FED. R. Civ. P. 33(a). If Plaintiff wishes to
propound more than twenty-five (25) interrogatories to a party, Plaintiff must have
permission of the court. If Plaintiff wishes to file a motion to compel, pursuant to
Federal Rule of Civil Procedure 37, he should first contact the attorneys for the
Defendants and try to work out the problem; if Plaintiff proceeds with the motion to
compel, he should also file a statement certifying that he has contacted opposing
counsel in a good faith effort to resolve any dispute about discovery. FED. R. Civ. P.
26(c); 37(a)(2); Local Rule 26.5. Plaintiff has the responsibility for maintaining his own
records of the case. If Plaintiff loses papers and needs new copies, he may obtain them
from the Clerk of Court at the standard cost of fifty ($.50) cents per page.
If Plaintiff does not press his case forward, the court may dismiss it for want of
prosecution. FED. R. Civ. P.41; Local Rule 41.1.
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It is the Plaintiff's duty to cooperate fully in any discovery which may be initiated
by the Defendants. Upon no less than five (5) days notice of the scheduled deposition
date, the Plaintiff shall appear and permit his deposition to be taken and shall answer,
under oath or solemn affirmation, any question which seeks information relevant to the
subject matter of the pending action. Failing to answer questions at the deposition or
giving evasive or incomplete responses to questions will not be tolerated and may
subject Plaintiff to severe sanctions, including dismissal of this case.
As the case progresses, Plaintiff may receive a notice addressed to "counsel of
record" directing the parties to prepare and submit a Joint Status Report and a
Proposed Pretrial Order. A plaintiff proceeding without counsel may prepare and file a
unilateral Status Report and is required to prepare and file his own version of the
Proposed Pretrial Order. A plaintiff who is incarcerated shall not be required or entitled
to attend any status or pretrial conference which may be scheduled by the court.
ADDITIONAL INSTRUCTIONS TO PLAINTIFF REGARDING MOTIONS TO DISMISS
AND MOTIONS FOR SUMMARY JUDGMENT
Under this Court's Local Rules, a party opposing a motion to dismiss shall file
and serve his response to the motion within fourteen (14) days of its service. "Failure to
respond shall indicate that there is no opposition to a motion." Local Rule 7.5.
Therefore, if you fail to respond to a motion to dismiss, the Court will assume that you
do not oppose the Defendants' motion.
Your response to a motion for summary judgment must be filed within twenty one
(21) days after service of the motion. Local Rules 7.5, 56.1. The failure to respond to
such a motion shall indicate that there is no opposition to the motion. Furthermore,
each material fact set forth in the Defendants' statement of material facts will be
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deemed admitted unless specifically controverted by an opposition statement. Should
the Defendants file a motion for summary judgment, you are advised that you will have
the burden of establishing the existence of a genuine dispute as to any material fact in
this case. That burden cannot be carried by reliance on the conclusory allegations
contained within the complaint. Should the Defendants' motion for summary judgment
be supported by affidavit, you must file counter-affidavits if you desire to contest the
Defendants' statement of the facts. Should you fail to file opposing affidavits setting
forth specific facts showing that there is a genuine dispute for trial, the consequences
are these: any factual assertions made in Defendants' affidavits will be accepted as true
and summary judgment will be entered against the Plaintiff pursuant to Federal Rule of
Civil Procedure 56.
SO ORDERED and REPORTED and RECOMMENDED, this
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January, 2013.
VIES E. GRAHAM
ITED STATES MAGISTRATE JUDGE
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