Inman v. Zanders et al

Filing 3

ORDER providing instructions to the pro-se plaintiff regarding service. Signed by Magistrate Judge Brian K. Epps on 11/24/15. (cmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
DUBLIN DIVISION
KENNETH L. INMAN,

)
)
Plaintiff,
)
)
v.
)
)
SAM ZANDERS, Warden, Dodge State
)
Prison; TINA SANDERS, Deputy Warden
)
of Care and Treatment, Dodge State Prison;
)
DEPARTMENT OF CORRECTIONS;
)
and HOMER BRYSON,
)
)
Defendants.
)
_________

CV 315-095

ORDER
_________

Plaintiff has paid the $400.00 filing fee in the above-captioned case. Because he is
proceeding pro se, the Court will provide Plaintiff with some basic instructions regarding the
development and progression of this case.
Initially, Plaintiff is responsible for serving Defendants. In order to properly request
that Defendants waive personal service, Plaintiff must
(1)

obtain from the Clerk of Court an appropriate number of copies of1
(a)
(b)

(2)

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the notice of lawsuit and request to waive service of
summons form, and
the waiver of service of summons form;

complete both forms; and

The Court DIRECTS the CLERK to attach the appropriate number of copies of
these documents to the service copy of this Order.

(3)

mail the completed notice form, along with a copy of the file-stamped
complaint and two waiver forms, to Defendants by first class mail, with
a prepaid means for returning the waiver form, and request that
Defendants waive formal service of the summons.

Fed. R. Civ. P. 4(d).
Plaintiff must serve Defendants within 120 days from the date his complaint was
filed, and failure to do so may result in the dismissal of this case. Fed. R. Civ. P. 4(m).
Individuals, corporations, partnerships, and associations have a duty to avoid unnecessary
expenses of serving the summons, and a defendant who fails to sign and return a waiver
without good cause must bear the expenses incurred in making personal service. Fed. R.
Civ. P. 4(d)(1) & (2). A defendant whose return of the waiver is timely does not have to
answer the complaint until sixty days after the date Plaintiff mails the request for waiver.
Fed. R. Civ. P. 4(d)(3). However, should a defendant choose not to waive personal service
of the summons and complaint, Plaintiff is still responsible for properly effecting personal
service. Fed. R. Civ. P. 4(c), (e) & (h).
IT IS ORDERED THAT Plaintiff shall serve upon Defendants, or upon its attorney
if appearance has been entered by counsel, a copy of every further pleading or other
document submitted to the Court. Plaintiff shall include with the papers to be filed a
certificate stating the date a true and correct copy of any document was mailed to Defendants
or its counsel. Fed. R. Civ. P. 5; Loc. R. 5.1. 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 that has not been properly filed
with the Clerk of Court or that fails to include a caption or certificate of service will be
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returned.
It is Plaintiff’s duty to cooperate fully in any discovery that may be initiated by
Defendants. Upon being given at least five days notice of the scheduled deposition date,
Plaintiff shall appear and permit his deposition to be taken and shall answer, under oath and
solemn affirmation, any question that 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. Defendants shall ensure that 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.2
While this action is pending, Plaintiff shall immediately inform this Court and
opposing counsel of any change of address. Failure to do so will result in dismissal of this
case.
Plaintiff must pursue this case and failure to do so may result in dismissal for want of
prosecution. Fed. R. Civ. P. 41; Loc. R. 41.1. If Plaintiff wishes to obtain facts and information about the case from Defendants, Plaintiff must initiate discovery. See generally Fed. R.
Civ. P. 26 through 37 (containing the rules governing discovery and providing for the basic
methods of discovery). Plaintiff should begin discovery promptly and complete it within the
time limit set forth in Local Rule 26.1(d).
Interrogatories are a practical method of discovery for pro se litigants. See Fed. R.
2

The Local Rules and commonly used Forms may be found on the Court’s website at
www.gasd.uscourts.gov/.
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Civ. P. 33. Interrogatories shall not contain more than twenty-five questions. Id. Plaintiff
must have the Court’s permission to propound more than one set of interrogatories to a party.
Discovery materials should not be filed routinely with the Clerk of Court. Exceptions
include when the Court directs filing; when a party needs such materials in connection with a
motion or response, and then only to the extent necessary; and when needed for use at trial.
If Plaintiff wishes to file a motion to compel pursuant to Fed. R. Civ. P. 37, he should first
contact the attorney for Defendants and try to work out the problem. If Plaintiff proceeds
with the motion to compel, he should file therewith a statement certifying that he has
contacted opposing counsel in a good faith effort to resolve any dispute about discovery.
Loc. R. 26.5.
Plaintiff must maintain a set of records for the case. If papers are lost and new copies
are required, these may be obtained from the Clerk of the Court at the standard cost of fifty
cents per page.
Under this Court’s Local Rules, a party opposing a motion to dismiss shall file and
serve his response to the motion within fourteen days of its service. “Failure to respond
within the applicable time period shall indicate that there is no opposition to a motion.” Loc.
R. 7.5. Therefore, if Plaintiff fails to respond to a motion to dismiss, the Court will assume
that there is no opposition to the motion and will grant the dismissal.
A response to a motion for summary judgment must be filed within twenty-one days
after service of the motion. Loc. R. 7.5, 56.1. A failure to respond shall indicate that there is
no opposition to the motion. Loc. R. 7.5. Furthermore, each material fact set forth in a
defendant’s statement of material facts will be deemed admitted unless specifically
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controverted by a statement filed by Plaintiff. Loc. R. 56.1. Should Defendants file a motion
for summary judgment, Plaintiff is advised that he will have the burden of establishing the
existence of a genuine issue as to any material fact in this case. That burden cannot be
carried by reliance on the conclusory allegations contained within the complaint. Should a
factual assertion in a defendant’s motion for summary judgment be supported by affidavits or
other materials in the record as provided in Fed. R. Civ. P. 56(c), Plaintiff must respond in
kind with counter-affidavits or other such materials, if he desires to contest a defendant’s
factual assertion. Should Plaintiff fail to properly address a defendant’s factual assertions
and show that there is a genuine issue for trial, the factual assertions made in the defendant’s
motion which are properly supported will be accepted as undisputed and, if the defendant is
entitled to judgment as a matter of law, summary judgment will be entered against Plaintiff
pursuant to Fed. R. Civ. P. 56.
SO ORDERED this 24th day of November, 2015, at Augusta, Georgia.

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