Lamb v. Bennett et al

Filing 12

ORDER directing a copy of Plaintiff's Complaint and a copy of this Order shall be served upon Defendants Lanier, Bennett, and Newsome by the United States Marshal. It is further Ordered that defendants are hereby granted leave of court to take t he deposition of the Plaintiff upon oral examination. 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. Instruc tions to plaintiff & Instructions to Defendants. REPORT AND RECOMMENDATIONS re 1 Complaint filed by Clyde Lamb; to the extent Plaintiff intends this to be a claim for relief, this claim does not appear to be related to Plaintiff's other claims and should be dismissed. ( Objections to R&R due by 3/23/2009). Signed by Magistrate Judge James E. Graham on 3/5/2009. (csr)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT,JOIGJA BRUNSWICK DIVISIeiW IMñ CLE . CLYDE LAMB, Plaintiff,
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CIVIL ACTION NO.: CV208-165

WAYNE V. BENNETT, Sheriff; Sgt. LANIER, and CLIFTON NEWSOME, Jail Administrator, Defendants

MAGISTRATE JUDGE'S ORDER and REPORT AND RECOMMENDATION Plaintiff, who is presently confined at the Glynn County Detention Center in Brunswick, Georgia, filed an action pursuant to 42 U.S.C. § 1983 contesting the conditions of his confinement. A detainee 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 consruction. Haines v. Kerner, 404 U.S. 519, 520 (1972); Walker v. Ducicier, 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)()(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. The court may dismiss a complaint for failure to state a claim only where it appears beyond a doubt that a pro se litigant can prove no set of facts that would entitle him to relief. Hughes v. Rowe, 449 U.S. 5, 10(1980); 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 asserts Defendant Lanier placed handcuffs on him, jerked him around, shoved his right arm in a "hammer lock", and slammed him to the floor. (Compl., p. 5). Plaintiff asserts the handcuffs cut into his wrist and that being slammed to the floor caused injuries to his shoulder and knee. Plaintiff also asserts he did not receive medical attntion for several days after this use of force incident. Plaintiff contends he did not have food or clothing for six (6) days while his knee swelled to the size of a softball. Plaintiff also contends Defendants Bennett and Newsome knew he was injured but left him in the cell without clothing.

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It is a well-settled principle that "the unnecessary and wanton infliction of pain. constitutes cruel and unusual punishment" in violation of the Eighth Amendment. Whitle y v. Albers, 475 U.S. 312, 319 (1986)(quoting Ingraham v. Wrig ht, 430 U.S. 651, 670 (1977): (internal quotes omitted)). The Eighth Amendment prohibition against the use of cruel and unusual punishment governs the amount of force that a prison official is entitled to use. Cam p bell v. Sikes, 169 F.3d 1353, 1374 (11th Cir. 1999). This duty to safeguard also embodies the principle expressed by the Supreme Court in Estelle v. Gamble, 429 U.S. 97, 104 (1976), forbidding jail officials from demonstrating deliberate indifference to the serious medical needs of detainees. Farmer v. Brennan, 511 U.S. 825, 832 (1:994). Further, the Eighth Amendment requires that states not impose punishments that shock the conscience, involve unnecessary and wanton inflictions of pain, offend evolving notions of decency, or are grossly disproportionate to the offense for which they are imposed. Newman v. Alabama, 503 F.3d 1320, 1330 n.14 (5th Cir. 1974); see Estelle, 429 U.S. at 102-03. The Supreme Court has recognized that under the Eighth Amendment, "conditions of confinement . . . may make intolerable an otherwise constitutional term of imprisonment." Ing raham, 430 U.S. at 669 n.38. These allegations, when read in a light most favorable to the Plaintiff, arguably state colorable claims for relief under 42 U.S.C. § 1983 and 28 U.S.C. § 1915A against Defendants Lanier, Bennett, and Newsome. A copy of Plaintiff's Complaint and a copy of this Order shall be served upon Defendants Lanier, Bennett, and Newsome by the United States Marshal without prepayment of cost. If any Defendant elects to file a

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Waiver of Reply, then he or she must file either a dispositive motion or an answer to the complaint within thirty (30) days of the filing of said Waiver of Reply. Plaintiff makes mention that the sheriffs department and jail administrators conspired together to "disrupt" his access to the courts by taking him to Camden County. (9omp., p. 6). To the extent Plaintiff intends this to be a claim for relief, this claim does not appear to be related to Plaintiff's other claims and should be dismissed.
FED. R. Civ. P. 20(a). INSTRUCTIONS TO DEFENDANTS

Since the Plaintiff is authorized to proceed in forma pauperis, service must be effected by the United States Marshal. FED. R. Civ. P. 4(c)(2). In most cases, the marshal will first mail a copy of the complaint to Defendants by first-class mail and request that the Defendants waive formal service of summons. FED. R. Civ. P. 4(d); Local Rule 4.7. 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). Defendants shall ensure that the Plaintiff's deposition and any other depositions in the case are taken within the 140-da y discovery period allowed by this court's local rules.

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In the event that Defendants take the deposition of any other person, Defendants 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, Defendants shall notify Plaintiff of the deposition and advise him that he may serve on 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. 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 attorney, 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 their counsel. FED. R. Civ. P. 5. "Every pleading shall contain a caption setting forth the name of th 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. Loca 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 lof the court to begin discovery, and Plaintiff should begin discovery promptly and complte it within 120 days after the filing of the answer. Local Rule 26.1. lnterogatories are a practical method of discovery for incarcerated persons. FED. R. Civ. P. 33. Interrogatories may be served only on a p arty 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 Defendants. Interrogatories shall not bp filed with the court. Local Rule 26.6. Interrogatories are not to contain more than twenty-five (25) questions. FED. R. Civ. P. 33(a). If Plaintiff wishes to propound rnore 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 attorney for Defendants and try to work out th problem; if Plaintiff proceeds with the motion to compel, he should also file a statemen 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)(A); Local Rule 28.7. Plaintiff ha$ 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 Plintiff 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 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 solmn affirmation, any question which seeks information relevant to the subject matter of tihe 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, includin g 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 fifteen (15) 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 oppse the Defendants' motion. Your response to a motion for summary judgment must be filed within twenty (20) 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

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material fact set forth in the Defendants' statement of material facts will be deemed admitted unless specifically controverted by an opposition statement. Should Defendants file a motion for summary judgment, you are advised that you will have the burden of pstablishing the existence of a genuine issue as to any material fact in this case. Tht 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 issue 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 March, 2009. day of

i1ES E. GRAHAM ITED STATES MAGISTRATE JUDGE

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