Addison v. Haynes et al

Filing 6

ORDER directing the United States Marshal to serve a copy of Plaintiffs Complaint and a copy of this Order upon Defendants Arnett, Bowen, Pickett, Mosely, and Wolford, the Attorney General of the United States of America and the United States Attorney for the Southern District of Georgia. The answer of the Defendants shall be filed within sixty days of receipt of such service. Signed by Magistrate Judge James E. Graham on 7/11/2013. (csr)

FILED
U.S. 1STF:cT COURT

IN THE UNITED STATES DISTRICT COURTU i. nlv
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION
2013 JUL I I A
CL

SEAN ROBERT ADDISON,
Plaintiff,
vs.

:

ANTHONY HAYNES; GLENN A.
CARRINO; JOSEPH ARNETT;
JERUMY BOWEN; STEPHEN
PICKETT; WAYNE MOSELY;
and FNU WOLFORD,

CIVIL ACTION NO.: CV213-071

I

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Defendants.

ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

Plaintiff, who is currently incarcerated at the Federal Correctional Institution in
Sheridan, Oregon, filed a cause of action pursuant to 28 U.S.C. § 1331 and Bivens v.
Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),
contesting certain conditions of his confinement while incarcerated at the Federal
Correctional Institution in Jesup, Georgia ("FCI Jesup"). 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. §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. Dugger, 860 F.2d 1010, 1011 (11th Cir. 1988).

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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 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, all "FCI Jesup officials", placed another
inmate, known as Guiterrezz, in the Special Housing Unit ("SHU") without taking
necessary precautions in violation of the Eighth Amendment. Plaintiff alleges
Guiterrezz was known to have a proclivity for assaulting black inmates. Plaintiff avers
that, upon his request, Defendant Jerumy Bowen signed Plaintiff up for recreation.
Plaintiff contends that Bowen negligently assigned Guiterrezz and Plaintiff to the same
recreation cage. Plaintiff asserts that when he viewed Guiterrezz in the recreation
cage, Plaintiff informed Defendant Steven Pickett that it was not "a good idea" to place
Plaintiff in the same recreation area as Guiterrezz.

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(]4. at p. 7). Plaintiff alleges Pickett

ignored the warning and placed both inmates in the same cage. Plaintiff states that
before his handcuffs were removed Guiterrezz, whose handcuffs had been removed
first, brutally attacked him. Plaintiff further asserts that Defendant Pickett sounded an
alarm, and SHU Lieutenant Joseph Arnett, Correctional Officers Bowen, Mosley, and
Wolford responded but did not attempt to halt the alleged beating. In Count Two,
Plaintiff contends "the defendants FCI Jesup Officials" were negligent in failing to
ensure that the recreation area was equipped with an inner safety chute, which would
have separated prisoners that were handcuffed from those whose handcuffs had
already been removed. (Doc. No. 1, p. 8). Plaintiff claims to suffer from chronic
headaches, dizziness, blurry vision, post traumatic syndrome, bouts of extreme pain,
fatigue, and numbness in both legs as a result of the attack. (Id. at p. 9). Plaintiff avers
he has exhausted his administrative remedies, having received a response to his
Central Office Administrative Remedy Appeal advising Plaintiff that the matter had
been referred to another component of the Bureau of Prisions.

([d. at p. 25). Plaintiff

names as Defendants: Warden Anthony Haynes, Captain Glenn A. Carrino, Lieutenant
Joseph Arnett, Jerumy Bowen, Stephen Pickett, Wayne Mosely, and "Officer Wolford".
A plaintiff must set forth "a short and plain statement of the claim showing that
[he] is entitled to relief."

FED. R. Civ. P. 8(a)(2). Plaintiff fails to make any factual

allegations against Warden Anthony Haynes or Captain Glenn A. Carrino. Plaintiff
presumably attempts to hold Defendants Haynes and Carrino liable based solely on
their supervisory positions. "It is well established in this circuit that supervisory officials
are not liable under Bivens for unconstitutional acts of their subordinates on the basis
of respondeat superior or vicarious liability." Gonzalez v. Reno, 325 F.3d 1228, 1234

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(11th Cir. 2003). A supervisor may be liable only through personal participation in the
alleged constitutional violation or when there is a causal connection between the
supervisor's conduct and the alleged violations. As Plaintiff has failed to make this
showing against Defendant Haynes or Defendant Carrino, his claims against
Defendants Haynes and Carrino should be DISMISSED.
To the extent that Plaintiff claims Defendants acted negligently, he cannot
sustain such a claim in this lawsuit. An allegation that defendants acted with
negligence in causing Plaintiff injury is not sufficient to support a claim under Bivens.
See Daniels v. Williams, 474 U.S. 327, 330-31 (1986). Bivens "imposes liability for
violations of rights protected by the Constitution, not for violations of duties of care
arising out of tort law." See Baker v. McColIan, 443 U.S. 137, 146 (1979). Plaintiffs
negligence claims should be DISMISSED.
However, a plaintiff states a cognizable claim for relief under Bivens if his
complaint alleges facts showing that his rights, as secured by the Constitution and the
laws of the United States, were violated. 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. Whitley v. Albers, 475 U.S. 312,
319 (1986) (quoting In g raham v. Wri g ht, 430 U.S. 651, 670 (1977) (internal quotes
omitted)). The Eighth Amendment's prohibition against the use of cruel and unusual
punishment imposes a constitutional duty upon prison officials to "take reasonable
measures to guarantee the safety of the inmates." Farmer v. Brennan, 511 U.S. 825,
832 (1994) (citation omitted). Additionally, "a prison official's failure to act in certain
circumstances can amount to an infliction of cruel and unusual punishment. An

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official's deliberate indifference to a known danger violates an inmate's Eighth
Amendment rights." McCoy v. Webster, 47 F.3d 404, 407 (11th Cir. 1995) (citing
Estelle v. Gamble, 429 U.S. 97, 104-05 (1976)). Plaintiff arguably sets forth Eighth
Amendment claims against Defendants Arnett, Bowen, Pickett, Mosely, and Wolford.
The above allegations, when read in the light most favorable to Plaintiff,
arguably state claims under Bivens and 28 U.S.C. § 1915A against Defendants Arnett,
Bowen, Pickett, Mosely, and Wolford. A copy of Plaintiff's Complaint and a copy of this
Order shall be served upon Defendants Arnett, Bowen, Pickett, Mosely, and Wolford,
the Attorney General of the United States, and the United States Attorney for the
Southern District of Georgia by the United States Marshal without prepayment of cost.
Pursuant to Fed. R. Civ. P. 4(i), the United States Attorney for the Southern District of
Georgia may be personally served or served by registered or certified mail addressed
to the civil process clerk at the office of the United States Attorney. Pursuant to that
same rule, service may be perfected on the United States Attorney General by
registered or certified mail. The answer of the Defendants shall be filed within sixty
(60) days of receipt of such service. FED. R. Civ. P. 12(a)(3)(B). If any 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
effected 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 Defendant waive formal service of summons. FED. R. Civ. P. 4(d);

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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).
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

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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.
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).
nterrogatories are a practical method of discovery for incarcerated persons. See
FED. R. Civ. P. 33. Interrogatories may be served only on a prtv 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

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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.
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

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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 twentyone (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
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

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true and summary judgment will be entered against the Plaintiff pursuant to Federal
Rule of Civil Procedure 56.
i1t-

SO ORDERED and REPORTED AND RECOMMENDED, this // day of
July, 2013.

i1ES E. GRAHAM
lIED STATES MAGISTRATE JUDGE

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