Flowers v. Shaw et al

Filing 6

ORDER directing the United States Marshal to serve a copy of the complaint and a copy of this Order upon Defendants Lane, McCullough, Chitty, Phillips, and Brooks. Generally, a defendant who timely returns the waiver is not required to answer the complaint until sixty days after the date that the marshal sent the request for waiver. Signed by Magistrate Judge James E. Graham on 12/1/2014. (csr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION

ANTHONY FLOWERS,
Plaintiff,
CIVIL ACTION NO.: CV214-138

V.

Mayor HERB SHAW; RICKY A.
REDDISH, SR.; DON DARDEN; NICK
HARRIS; BOBBY TOWNSEND; RAY
HOUSE; GENEVA D. NICHOLS; CITY
OF JESUP POLICE DEPARTMENT;
Lt. MARK LANE; Sgt. JONATHAN
McCULLOUGH; WILLIAM CHITTY;
CANDACE PHILLIPS; and TY
BROOKS, State Trooper,
Defendants.

ORDER and MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Plaintiff, who is currently incarcerated at Johnson State Prison in Wrightsville,
Georgia, filed a cause of action pursuant to 42 U.S.C. § 1983. 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. Dugqr, 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 asserts that Defendants Lane, Chitty, McCullough, and Phillips, all of
whom are City of Jesup police officers, and Defendant Brooks, a Georgia State trooper,
breeched his residence without announcing their presence in an attempt to execute an
arrest warrant on Plaintiff. Plaintiff alleges that he met the officers with both of his
hands and arm extended over his head, but Defendant Chilly began firing an assault
rifle at Plaintiff. Plaintiff contends that he suffered gunshot wounds to his chest,
stomach, and right arm, which required extensive medical treatment. Plaintiff also
names as Defendants: City Commissioners heddish, Darden, Harris, Townsend,
House, and Nichols; Jesup Mayor Shaw; and the City of Jesup Police Department.
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). In order to state a claim for relief under
42 U.S.C. § 1983, a plaintiff must satisfy two elements. First, a plaintiff must allege that

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an act or omission deprived him "of some right, privilege, or immunity secured by the
Constitution or laws of the United States." Hale v. Tallapoosa Cntv., 50 F.3d 1579,
1582 (11th Cir. 1995). Second, a plaintiff must allege that the act or omission was
committed by "a person acting under color of state law." j., Plaintiff fails to make any
factual allegations against the City Commissioners or the Mayor. Plaintiffs claims
against Defendants Reddish, Darden, Harris, Townsend, House, Nichols, and Shaw
should be dismissed.
Plaintiff cannot sustain a cause of action against the City of Jesup Police
Department. A governmental entity "may be held liable for the actions of' its employees
when the entity's "official policy causes a constitutional violation." Gold v. City of Miami,
151 F.3d 1346, 1350 (11th Cii. 1998). A plaintiff "must identify a... policy or custom
[which] caused his injury." Id. A governmental entity is subject to liability under section
1983 "when execution of a government's policy or custom . . . inflicts the injury."
Mercado v. City of Orlando, 407 F.3d 1152, 1161 (11th Cir. 2005). Plaintiff has failed to
assert that the City of Jesup Police Department had any policy or custom in place or
that the policy or custom led to any injury, and his claims against the City of Jesup
Police Department should be dismissed.

Likewise, Plaintiffs claims against

Defendants Reddish, Darden, Harris, Townsend, House, Nichols, and Shaw, as the
policymakers for the City of Jesup, should be dismissed for this reason, as well.
In addition, the Supreme Court has held:
that, in order to recover damages for allegedly unconstitutional conviction
or imprisonment, or for other harm caused by actions whose unlawfulness
would render a conviction or sentence invalid, a § 1983 plaintiff must prove
that the conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal
authorized to make such determination, or called into question by a federal

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court' s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for
damages bearing that relationship to a conviction or sentence that has not
been so invalidated is not cognizable under § 1983.
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). According to the Heck Court, "when a
state prisoner seeks damages in a [civil rights] suit, the district court must consider
whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his
conviction or sentence." I d. at 487. If this is the case, the plaintiff's complaint "must be
dismissed unless the plaintiff can demonstrate that the conviction or sentence has
already been invalidated." Id. A district court must determine whether "plaintiffs action,
even if successful, will not demonstrate the invalidity of any outstanding criminal
judgment against the plaintiff, the action should be allowed to proceed, in the absence
of some other bar to the suit." Id. (emphasis in original). To have success on his
putative false arrest claim, Plaintiff's conviction would have to be overturned, which has
not occurred. To the extent Plaintiff sets forth a claim that his arrest was improper, such
a claim should be dismissed.
However, it is a well-settled principle that "the unnecessary and wanton infliction
of pain . . . constitutes cruel and unusual punishment " in violation of the Fourth
Amendment. Saunders v. Duke, 766 F.3d 1262, 1264 (11th Cir. 2014). It is not
necessary that a correctional officer actually participate in the use of excessive force in
order to be held liable under section 1983. Rather, "an officer who is present at the
scene and who fails to take reasonable steps to protect [a] victim of' the "use of
excessive force can be held liable for his nonfeasance." See Skrtich v. Thornton, 280
F.3d 1295, 1301 (11th Cir. 2002) (citing Fundiller v. City of Cooper, 777 F.2d 1436,
1442 (11th Cir. 1985)).

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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 Lane, McCullough, Chitty, Phillips, and Brooks for alleged violations of the
Fourth Amendment. A copy of Plaintiff's Complaint and a copy of this Order shall be
served upon Defendants Lane, McCullough, Chitty, Phillips, and Brooks by the United
States Marshal without prepayment of cost. If any Defendant elects to file a 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.
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 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).

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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.
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 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
their 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.

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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 120 days after the filing of the answer. Local Rule 26.1.
Interrogatories are a practical method of discovery for incarcerated persons. . See
FED. R. Civ. P. 33. Interrogatories may be served only on a party 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 be 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 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 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)(A);
Local Rule 26.7. 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.

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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 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.

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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
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 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 / day of
December, 2014.

iS E. GRAHAM
ED STATES MAGISTRATE JUDGE

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