Owens v. Prince et al

Filing 24

ORDER directing the defendants to file answers or dispositive motions no later than 14 days from the date this Order is served. Signed by Magistrate Judge G. R. Smith on 5/26/16. (bcw)

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UNITED STATES DISTRICT COURT
2 01& KAY 2G

SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
DANTONIUS M. OWENS,

PH 14: 13

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GA

F.

Plaintiff,
I,-,

Case No. CV414-212
BARBARA PRINCE, GLENDORA
BIRDDELL, 1 LAWRENCE MANKER,
and JACK KOON,

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Defendants.

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ORDER
On September 2, 2015, after preliminarily reviewing his Complaint
pursuant to 28 U.S.C. § 1915A, 2 the Court greenlit pro se plaintiff
Dantonius Owens' 42 U.S.C. § 1983 "lawsuit on the following claims: (1) a
right to privacy claim against [Barbara] Prince, [Glendora] Birddell, and
[Lawrence] Manker; (2) an excessive force claim against Manker; and (3) a
retaliation claim against Birddell and [Jack] Koon. Doc. 16 at 13. It then
To date, defendant Birddell's name has been spelled "Glenden." Defendants alerted
the Court that her name is in fact "Glendora." Doc. 22 at 1. The Clerk is DIRECTED
to amend the case caption accordingly. All future filings shall conform.
2

The Court also noted that it had the same preliminary review authority under 42
U.S.C. § 1997e(c)(2), which allows dismissal on the same grounds as § 1915A "as to any
prisoner suit brought with respect to prison conditions." Doc. 16 at 2 n. 1.

directed the U.S. Marshal to serve defendants, and instructed them that
(1) they had a duty to avoid unnecessary service costs, and (2) defendants
who fulfill that duty by timely waiving service receive an extended period

"to answer the complaint." Id. at 13-14 (emphasis added). Service finally
occurred over eight months later, 3 and defendants returned waivers on
May 17, 2016. See, e.g., doc. 21.
Because the Marshal mailed those service waivers on March 24,
2016, defendants had until May 24, 2016 to file their answers or
dispositive motions. See Fed. R. Civ. P. 4(d)(3) (defendants have "60 days
after the [waiver] request was sent" within which to "serve an answer").
Instead of answering -- an action the Court's "greenlight" Order (doc. 16)
implicitly required by outlining the deadline discount in rule 4(d)(3) -they have filed a "Waiver of Reply," in which they state that "[d]efendants

The Court has been unable to ascertain precisely why service took so long to effect.
Typically, the state AG accepts service for individual defendants and promptly returns
waivers. Where the ball was dropped and who dropped it in this case is unclear. Still,
the delay resulted in a plaintiff with potentially meritorious claims (i.e., they survived
preliminary review) waiting an inordinate amount of time to have those claims
responded to and subsequently adjudicated. That's not justice and all involved in this
proceeding -- from the plaintiff, to defendants, to defense counsel, to government
employees -- must strive to prevent it from happening again, whether in this case or
others. See United States v. Bert, 814 F.3d 70, 83 (2d Cir. 2016) ("[J]ustice delayed is
justice denied.").

will file a dispositive motion or an answer to the Complaint, 4 pursuant to
42 U.S.C. § 1997e(g)(2), 5 in the event that the court finds that the
Plaintiff has a reasonably opportunity to prevail on the merits." Doe. 22
at 1 (filed May 24, 2016).
The court already so found when it greenlit several of Owens'
claims. See doe. 16 at 13. Again, that Order (1) expressly allowed claims
to proceed against all defendants; (2) directed service of the Complaint;
and (3) implicitly required defendants to answer.

Id. at 13-14. Put

differently, "[d]efendants were ordered by this Court to respond to the
amended complaint, doe. [15] . . . but failed to do so." Halpin v. David,
2008 WL 5663943 at * 2 (N.D. Fla. Dec. 8, 2008); id. ("While § 1997e(g)
allows a Defendant to wait to respond until directed to do so, 'without
being deemed to have admitted the complaint's allegations," it is not
It appears Defendants incorrectly or inadvertently identified Doc. 1 as the Complaint
to which they waive a reply. See doc. 22 (filed by defense counsel, with a docket entry
linking to Doe. 1). To be clear, the operative pleading is Owens' Amended Complaint,
doe. 15, which the Clerk included in the service waiver packet sent to defendants. See
doe. 16 at 14.
Under § 1997e(g)(1), defendants to suits by prisoners may waive their right to reply
(i.e., answer or file a motion to dismiss) without admitting a Complaint's allegations or
risking the court granting relief to a plaintiff. Once a court "finds that the plaintiff
has a reasonable opportunity to prevail on the merits," however, "[t]he court may
require any defendant to reply." 42 U.S.C. § 1997e(g)(2).
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accepted that § 1997e(g) permits a Defendant to ignore a court order
directing a response.").
Nevertheless, the Court will not penalize defendants for their
oversight since no prejudice will accrue from a further brief delay in their
replies. All defendants, however, must file answers or dispositive motions
no later than 14 days from the date this Order is served, or otherwise they
will be in default.
SO ORDERED, thisp day of May, 2016.

UtiffEIf'S_T5k_ T - - MAGISTRATE JUDGE
I
SOUTHERN DISTRICT OF GEORGIA

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