Nelson v. Hart et al

Filing 7

ORDER that a copy of Plaintiff's Complaint and a copy of this Order shall be served upon Defendants Anderson, Cox, and Maddox by the United States Marshal. Signed by Magistrate Judge James E. Graham on 2/7/2013. (csr)

FILED

IN THE UNITED STATES DISTRICT COJJISTRICT COURT
,
FOR THE SOUTHERN DISTRICT OF GEORE
IVWAYCROSS DIVISION

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113 FEB _ p 02

BAVARIOUS NELSON,

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Plaintiff,
CIVIL ACTION NO.: CV513-009

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JARRELL HART, Warden;
Deputy Warden HOLDEN;
Lt. COX; Lt. ANDERSON; and
CERT Officer MADDOX,
Defendants.

ORDER and MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Plaintiff, an inmate presently confined at Smith State Prison in Glennville,
Georgia, filed an action pursuant to 42 U.S.C. § 1983 contesting the conditions of his
confinement while he was housed at Ware State Prison in Waycross, Georgia. 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, 52 (1972); Walker v. Dugger, 860 F.2d 1010, 1011 (11th Cir.

28 U.S.C. § 1915A requires a district i:ourt 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 alleges that Defendant Anderson subjected him to an excessive amount
of force after it took Plaintiff a bit too long to get into a "search position". (Doc. No. 1, p.
5). Plaintiff contends that Defendant Anderson grabbed him by the neck and face and
drove him into a fence, which cut his face. Plaintiff contends that he pushed away from
Defendant Anderson, and Defendants Anderson, Cox, and Maddox kicked him in the
eye after he was handcuffed. Plaintiff alleges that Defendants Anderson, Cox, and
Maddox continued beating him despite his cries for help. Plaintiff also alleges that,
once he was escorted into the building, Defendant Maddox picked him up and slammed
his head into a concrete wall. Plaintiff further alleges that Defendants Anderson, Cox,
and Maddox used pepper spray on him, even though he was not resisting in any
manner. Plaintiff asserts that he suffered a broken arm and a severely swollen eye, yet
Defendants delayed getting him medical attention for his obviously broken arm. Plaintiff

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contends that Defendants conspired to violate his constitutional rights. Plaintiff also
names Warden Hart and Deputy Warden Holden as Defendants.
Plaintiff makes no factual allegations in his Complaint against Defendants Hart
and Holden. 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). It appears Plaintiff seeks to hold

Defendants Hart and Holden liable based solely on their positions as warden and
deputy warden, respectively. In section 1983 actions, liability must be based on
something more than a theory of respondeat superior. Braddv 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. Plaintiff has made no such showing. Plaintiffs claims against Defendants Hart
and Holden should be DISMISSED.
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. Wright, 430 U.S. 651,
670 (1977) (internal quotes omitted)). Furthermore, 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).

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A conspiracy "to violate another person's constitutional rights violates section
1983." Rowe v. City of Fort Lauderdale, 279 F.3d 1271, 1283 (11th Cir. 2002). "To
establish a prima facie case of section 1983 conspiracy, a plaintiff must show, among
other things, that defendants "'reached an understanding to violate [his] rights." jg
(quoting Strength v. Hubert, 854 F.2d 421, 425 (11th Cir. 1988)).
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 Anderson, Cox, and Maddox. A copy of Plaintiff's Complaint and a copy of
this Order shall be served upon Defendants Anderson, Cox, and Maddox by the United
States Marshal without prepayment of cost.
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
made 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 Defendant by first-class mail and request
that the Defendant waive formal service of summons. FED. R. Civ. P. 4(d); 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

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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, he 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, 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
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).

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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. Qv. 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).
Interrogatories are a practical method of discovery for incarcerated persons.

,See

FED. R. Civ. P. 33. Interrogatories may be served only on a pay 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 the 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 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.

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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 Plaintiffs 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
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.

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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 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
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 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

February, 2013.

S E. GRAHAM
ED STATES MAGISTRATE JUDGE

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