Jackson v. Correctional Corporation of America et al
Filing
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ORDER directing the United States Marshal to serve a copy of Plaintiffs Complaint and a copy of this Order upon Defendants McKerrocher and Fountain. 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 1/13/2015. (csr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
WAYCROSS DIVISION
ARTHUR JACKSON,
Plaintiff,
yj
CIVIL ACTION NO.: CV514-095
CORRECTIONAL CORPORATION OF
AMERICA; JOSEPH McKERROCHER;
DR. PIERRE FONTAINE; DR. SHARON
LEWIS; FNUK PANZER; and GRADY
PERRY,
Defendants.
ORDER and MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Plaintiff, who is currently housed at the Coffee Correctional Facility in Nicholls,
Georgia, filed a cause of action pursuant to 42 U.S.C. § 1983 contesting certain
conditions of his confinement. 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
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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 § 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. While the court in
Mitchell interpreted § 1915(e), its interpretation guides this court in applying the identical
language of § 1915A.
Plaintiff contends that Defendant McKerrocher and Fountaine were deliberately
indifferent to his serious medical needs. Specifically, Plaintiff contends that Defendants
McKerrocher and Fountain know that he has diabetes and did nothing to treat his
infected foot, which led to Plaintiff having gangrene and having his toe amputated.
Plaintiff also names Corrections Corporation of America, the Georgia Department of
Corrections, Sharon Lewis (Medical Director for the Georgia Department of
Corrections), Clinical Supervisor Panzer, and Warden Grady Perry as Defendants.
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
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 Cnty., 50 F.3d 1579,
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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." I d. Plaintiff makes no factual
allegations against Corrections Corporation of America, Georgia Department of
Corrections, Lewis, Panzer, or Perry, and his claims against these Defendants should
be dismissed.
A lawsuit against a state official or a state agency in its official capacity is no
different from a suit against a state itself; such a defendant is immune. Will v. Michigan
Dep't of State Police, 491 U.S. 58, 71(1989). In enacting 42 U.S.C. § 1983, Congress
did not intend to abrogate "well-established immunities or defenses" under the common
law or the Eleventh Amendment. I d. at 67. Because the State of Georgia would be the
real party in interest in a suit against the Georgia Department of Corrections, the
Eleventh Amendment immunizes this department from suit. Free v. Granger, 887 F.2d
1552, 1557 (11th Cir. 1989). Thus, Plaintiffs claims against the Georgia Department of
Corrections should be dismissed for this reason.
As noted above, Plaintiff names Corrections Corporation of America, Lewis,
Panzer, and Perry as Defendants. Corrections Corporation of America is a private
entity which contracts with the Georgia Department of Corrections to provide services
"traditionally within the exclusive prerogative of the state and becomes the functional
equivalent of the municipality under section 1983." Craig v. Floyd Cntv., Ga., 643 F.3d
1306, 1310 (11th Cir. 2011) (internal punctuation and citation omitted). In section 1983
actions, liability must be based on something more than a theory of respondeat
superior. Bryant v. Jones, 575 F.3d 1281, 1299 (11th Cii. 2009); Braddy v. Fla. Dep't of
Labor & Employment Sec., 133 F.3d 797, 801 (11th Cir. 1998). A supervisor may be
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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. "To state a claim against a supervisory defendant, the plaintiff
must allege (1) the supervisor's personal involvement in the violation of his
constitutional rights, (2) the existence of a custom or policy that resulted in deliberate
indifference to the plaintiffs constitutional rights, (3) facts supporting an inference that
the supervisor directed the unlawful action or knowingly failed to prevent it, or (4) a
history of widespread abuse that put the supervisor on notice of an alleged deprivation
that he then failed to correct." Barr v. Gee, 437 F. App'x 865, 875 (11th Cir. 2011).
Plaintiff fails to set forth sustainable claims against Corrections Corporation of America,
Lewis, Panzer, or Perry, and his claims against these Defendants should be dismissed
for this reason, as well.
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).
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 McKerrocher and Fountaine for alleged violations of the Eighth
Amendment. A copy of Plaintiff's Complaint and a copy of this Order shall be served
upon Defendants McKerrocher and Fountaine by the United States Marshal without
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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
Even though the Plaintiff is not proceeding in forma pauperis, the undersigned
directs that service 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 firstclass 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).
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,
Prior to the undersigned's requisite frivolity review, an answer was filed on behalf of Corrections
Corporation of America and Grady Perry.
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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.
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
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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.
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
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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.
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
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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
January, 2015.
L///
AMES E. GRAHAM
N lIED STATES MAGISTRATE JUDGE
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