Noel v. Hart et al

Filing 7

ORDER that a copy of Plaintiff's Complaint and a copy of this Order shall be served upon Defendant Hewitt. Signed by Magistrate Judge James E. Graham on 2/5/2013. (csr)

FILED
DISTRICT COURT
IN THE UNITED STATES DISTRICT COUR.S.
FOR THE SOUTHERN DISTRICT OF GEORGIA jLrTh nV.
WAYCROSS DIVISION

713 FEB -5 A 10: 40

CLERK
5* DirT C F C

ROMAN NOEL,

,

Plaintiff,
CIVIL ACTION NO.: CV513-007

V.

DARRELL HART, Warden, and
DR. DAVID HEWETT,
Defendants.

ORDER and MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Plaintiff, who is currently housed at Ware State Prison in Waycross, 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. Dugger, 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
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).

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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 § 191 5A(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. 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 contends that Defendant Hewitt, the dentist at Ware State Prison, has
been deliberately indifferent to his periodontal issues. Plaintiff also contends that he
has been trying to get needed treatment for his receding gums and halitosis for over
seven (7) years, and the only treatment Defendant Hewitt has provided were cleanings.
Plaintiff also names Darrell Hart, Warden at Ware State Prison, as a Defendant.
It appears Plaintiff seeks to hold Defendant Hart liable based solely on his
position as warden. In section 1983 actions, liability must be based on something more
than a theory of respondeat superior. Braddy v. Fla. Dep't of Labor & Employment
Sec., 133 F.3d 797, 801 (11th Cir. 1998). 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. Id. at 802. As

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Plaintiff has failed to make this basic showing, his claims against Defendant Hart should
be dismissed. An allegation that a grievance was filed with supervisory personnel is an
insufficient basis for liability in a section 1983 cause of action, Clayton v. Alston, No.
CV309-042, 2009 WL 3483805, at *5 n.5 (S.D. Ga. Oct. 28, 2009).
In addition, Plaintiff makes no factual allegations in his Complaint against
Defendant Hart. 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). As Plaintiff has failed to
make any factual allegations against Defendant Hart, his claims against Defendant Hart
should be DISMISSED.
However, the Eighth Amendment's proscription against cruel and unusual
punishment imposes a constitutional duty upon prison officials to take reasonable
measures to guarantee the safety of prison inmates. This duty to safeguard also
embodies the principle expressed by the Court in Estelle v. Gamble, 429 U.S. 97, 104
(1976), forbidding prison officials from demonstrating deliberate indifference to the
serious medical needs of inmates. Farmer v. Brennan, 511 U.S. 825, 832 (1994). In
instances where a deliberate indifference claim turns on a delay in treatment rather than
the type of medical care received, the factors considered are: "(1) the seriousness of the
medical need; (2) whether the delay worsened the medical condition; and (3) the reason
for the delay." j4.
These allegations, when read in a light most favorable to the Plaintiff, arguably
state a colorable claim for relief under 42 U.S.C. § 1983 and 28 U.S.C. § 1915A against
Defendant Hewitt. A copy of Plaintiff's Complaint and a copy of this Order shall be
served upon Defendant Hewitt by the United States Marshal without prepayment of

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cost. If 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 DEFENDANT
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 Defendant by first-class mail and
request that the Defendant 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 Defendant is hereby granted leave of court to
take the deposition of the Plaintiff upon oral examination. FED. R. Civ. P. 30(a).
Defendant shall ensure that the Plaintiffs 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 Defendant takes the deposition of any other person, Defendant
is 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,
Defendant shall notify Plaintiff of the deposition and advise him that he may serve on
Defendant, in a sealed envelope, within ten (10) days of the notice of deposition, written

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questions the Plaintiff wishes to propound to the witness, if any. Defendant 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 Defendant or, if
appearance has been entered by counsel, upon his 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 Defendant or his
counsel. FED. R. Civ. P. 5. "Every pleading shall contain a caption selling forth the
name of the court, the title of the action, [and] the file number." FED. ft 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 Defendant, 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.

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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 Defendant. 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 attorney for Defendant 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.
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

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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 Defendant's motion.
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 Defendant's statement of material facts will be
deemed admitted unless specifically controverted by an opposition statement. Should
Defendant 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

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contained within the complaint. Should the Defendant's motion for summary judgment
be supported by affidavit, you must file counter-affidavits if you desire to contest the
Defendant's 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 Defendant's 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

5

day of

February, 2013.

JNVJES E. GRAHAM
, UNiTED STATES MAGISTRATE JUDGE

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