Jones v. Chapman

Filing 22

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS without prejudice Plaintiff's conditions of confinement claims and DENY Plaintiff leave to appeal in forma pauperis as to this claim. The Court DIRECTS the United States Marshal to serve a copy of Plaintiff's Complaint and this Order upon Defendant. 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 re: 1 Complaint. Any party seeking to object to this Report and Recommendation is ordered to file specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered. (Objections to R&R due by 6/4/2018). Signed by Magistrate Judge R. Stan Baker on 5/21/2018. (Attachments: # 1 USM-285 - Form) (csr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
WAYCROSS DIVISION

DE’ANDRE DAMON JONES,
Plaintiff,

CIVIL ACTION NO.: 5:17-cv-37

v.
STEVE CHAPMAN,
Defendant.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, formerly an inmate at Ware State Prison in Waycross, Georgia, filed a
Complaint pursuant to 42 U.S.C. § 1983 contesting certain conditions of his confinement.
(Doc. 1.) For the reasons set forth below, I RECOMMEND the Court DISMISS without
prejudice Plaintiff’s conditions of confinement claim and DENY Plaintiff leave to appeal in
forma pauperis as to this claim.

However, Plaintiff arguably states a colorable deliberate

indifference to safety claim against Defendant Chapman. Accordingly, the Court DIRECTS the
United States Marshal to serve a copy of Plaintiff’s Complaint and this Order upon Defendant.
PLAINTIFF’S ALLEGATIONS
Plaintiff alleges he was assaulted by a Bloods gang member on December 19, 2016, and
was placed in solitary confinement because he refused to go back into the dormitory after the
assault. (Doc. 1, p. 3.) Plaintiff asserts he wrote administrative personnel the following day,
explained what happened, and requested that he be transferred or placed on protective custody.
On January 23, 2017, Plaintiff contends Defendant Chapman came to his cell and told him to
pack his things because Plaintiff “was going back to the compound.” (Id.) Plaintiff states

Defendant Chapman knew a Bloods gang member had assaulted Plaintiff, and Plaintiff was told
not to come back to the compound or he would be killed because a Bloods gang member’s
cousin was killed “on [his] case.” (Id.) Plaintiff avers he told Defendant Chapman he feared for
his life if he was going to be placed back on the compound and asked whether Defendant
Chapman would ask for Plaintiff to be transferred to another prison or be placed on protective
custody.

Defendant Chapman told Plaintiff he would entertain neither of those requests.

Instead, Plaintiff contends Defendant Chapman told him he would write a disciplinary report
against Plaintiff, and he could either go back on the compound or to the Tier II program. (Id.)
Plaintiff asserts he received a disciplinary report for failure to follow instructions based
on his refusal to go back to the compound, and he filed a grievance, to which he has failed to
receive a response. (Id. at pp. 3–4.) As a result of the disciplinary report, Plaintiff asserts he
received forty-five (45) days’ store, phone, and package restrictions. (Id. at p. 4.) He maintains
he is being threatened with placement in Tier II for trying to remain safe, even though the Tier II
program is supposed to be an offender management process, not punitive in nature.
Plaintiff states he was confined to his cell for twenty-four (24) hours a day since
December 19, 2016, without any recreation time. Plaintiff also states the only time he was
removed from his cell was to shower three times a week, and he was not been given any contact
visits or phone calls. Plaintiff contends he has been diagnosed with mental health issues, and the
conditions he was forced to live with exacerbate his mental health conditions. (Id.)

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STANDARD OF REVIEW
Plaintiff seeks to bring this action in forma pauperis. Under 28 U.S.C. § 1915(a)(1), the
Court may authorize the filing of a civil lawsuit without the prepayment of fees if the plaintiff
submits an affidavit that includes a statement of all of his assets, shows an inability to pay the
filing fee, and also includes a statement of the nature of the action which shows that he is entitled
to redress. Even if the plaintiff proves indigence, the Court must dismiss the action if it is
frivolous or malicious, or fails to state a claim upon which relief may be granted. 28 U.S.C.
§§ 1915(e)(2)(B)(i)–(ii). Additionally, pursuant to 28 U.S.C. § 1915A, the Court must review a
complaint in which a prisoner seeks redress from a governmental entity. Upon such screening,
the Court must dismiss a complaint, or any portion thereof, that is frivolous, malicious, or fails to
state a claim upon which relief may be granted or which seeks monetary relief from a defendant
who is immune from such relief. 28 U.S.C. § 1915A(b).
The Court looks to the instructions for pleading contained in the Federal Rules of Civil
Procedure when reviewing a complaint on an application to proceed in forma pauperis. See Fed.
R. Civ. P. 8 (“A pleading that states a claim for relief must contain [among other things] . . . a
short and plain statement of the claim showing that the pleader is entitled to relief.”); Fed. R.
Civ. P. 10 (requiring that claims be set forth in numbered paragraphs, each limited to a single set
of circumstances). Further, a claim is frivolous under Section 1915(e)(2)(B)(i) “if it is ‘without
arguable merit either in law or fact.’” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002)
(quoting Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001)).
Whether a complaint fails to state a claim under Section 1915(e)(2)(B)(ii) is governed by
the same standard applicable to motions to dismiss under Federal Rule of Civil
Procedure 12(b)(6). Thompson v. Rundle, 393 F. App’x 675, 678 (11th Cir. 2010). Under that

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standard, this Court must determine whether the complaint contains “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A
plaintiff must assert “more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not” suffice. Twombly, 550 U.S. at 555. Section 1915 also
“accords judges not only the authority to dismiss a claim based on an indisputably meritless legal
theory, but also the unusual power to pierce the veil of the complaint’s factual allegations and
dismiss those claims whose factual contentions are clearly baseless.” Bilal, 251 F.3d at 1349
(quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)).
In its analysis, the Court will abide by the long-standing principle that the pleadings of
unrepresented parties are held to a less stringent standard than those drafted by attorneys and,
therefore, must be liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972); Boxer X v.
Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) (“Pro se pleadings are held to a less stringent
standard than pleadings drafted by attorneys . . . .”) (quoting Hughes v. Lott, 350 F.3d 1157,
1160 (11th Cir. 2003)). However, Plaintiff’s unrepresented status will not excuse mistakes
regarding procedural rules. McNeil v. United States, 508 U.S. 106, 113 (1993) (“We have never
suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse
mistakes by those who proceed without counsel.”).
DISCUSSION
I.

Plaintiff’s Claims Against Defendant Chapman
Plaintiff’s contentions that Defendant Chapman was deliberately indifferent to a risk to

Plaintiff’s safety implicate the Eighth Amendment’s proscription against cruel and unusual
punishment.

That proscription imposes a constitutional duty upon prison officials to take

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reasonable measures to guarantee the safety of prison inmates.

Caldwell v. Warden, FCI

Talladega, 748 F.3d 1090, 1099–100 (11th Cir. 2014). While “[p]rison officials have a duty . . .
to protect prisoners from violence at the hands of other prisoners[, i]t is not, however, every
injury suffered by one prisoner at the hands of another that translates into a constitutional
liability. . . .” Purcell ex rel. Estate of Morgan v. Toombs County, 400 F.3d 1313, 1319 (11th
Cir. 2005) (citing Farmer v. Brennan, 511 U.S. 825 (1994)).
To show an Eighth Amendment violation, a plaintiff must “allege facts sufficient to show
‘(1) a substantial risk of serious harm; (2) the defendants’ deliberate indifference to that risk; and
(3) causation.’” Lane v. Philbin, 835 F.3d 1302, 1307 (11th Cir. 2016) (quoting Hale, 50 F.3d at
1582). The Court assesses the first element—a substantial risk of serious harm—under an
objective standard. Caldwell, 748 F.3d at 1099. The objective component requires a plaintiff to
show that the condition he complains of is sufficiently serious to violate the Eighth Amendment.
Hudson v. McMillian, 503 U.S. 1, 8 (1992); Chandler v. Crosby, 379 F.3d 1278, 1289–90 (11th
Cir. 2004).
The second element—defendant’s deliberate indifference to a substantial risk of serious
harm—has three components: “(1) subjective knowledge of a risk of serious harm; (2) disregard
of that risk; (3) by conduct that is more than mere negligence.” Farrow v. West, 320 F.3d 1235,
1245 (11th Cir. 2003) (citing McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999)). 1 The

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Eleventh Circuit case law on whether a claim of deliberate indifference requires “more than gross
negligence” or “more than mere negligence” is contradictory. Compare Goebert v. Lee County, 510 F.3d
1312, 1327 (11th Cir. 2007), with Bingham v. Thomas, 654 F.3d 1171, 1176 (11th Cir. 2011). In Melton
v. Abston, 841 F.3d 1207, 1223 (11th Cir. 2016), the Eleventh Circuit found “more than mere
negligence” to be the appropriate standard. 841 F.3d at 1223 n.2. Even so, at least two unpublished,
Eleventh Circuit cases post-Melton have continued to use the “gross negligence” standard. See, e.g.,
Woodyard v. Ala. Dep’t of Corr., 2017 WL 2829376 (11th Cir. June 30, 2017); Sifford v. Ford, 2017 WL
2874517 (11th Cir. July 6, 2017); see also Harris v. Prison Health Servs., 706 F. App’x 945, 951 (11th
Cir. 2017) (noting lack of clarity between “more than mere negligence” and “more than gross negligence”
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“subjective knowledge of a risk of serious harm” component requires a defendant to have “actual
knowledge that an inmate faced a substantial risk of serious harm[.]” Caldwell, 748 F.3d
at 1099.
Thus, “[t]o be deliberately indifferent a prison official must know of and disregard ‘an
excessive risk to inmate health or safety; the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and he must also draw
that inference.’” Smith v. Reg’l Dir. of Fla. Dep’t of Corr., 368 F. App’x 9, 14 (11th Cir. 2010)
(quoting Purcell, 400 F.3d at 1319–20). “[S]imple negligence is not actionable under § 1983,
and a plaintiff must allege a conscious or callous indifference to a prisoner’s rights.” Id. (quoting
Williams v. Bennett, 689 F.2d 1370, 1380 (11th Cir. 1982)); see also Carter v. Galloway, 352
F.3d 1346, 1350 (11th Cir. 2003) (“[M]erely negligent failure to protect an inmate from attack
does not justify liability under section 1983 . . . .”) (quotations and citations omitted).
“[A]n excessive risk of inmate-on-inmate violence at a jail creates a substantial risk of
serious harm.” Purcell, 400 F.3d at 1320. A prisoner has a right . . . to be reasonably protected
from constant threat of violence . . . from his fellow inmates.” Id. at 1320–21 (citing Woodhous
v. Virginia, 487 F.2d 889, 890 (4th Cir. 1973)). However, prison officials are not held liable for
every attack by one inmate upon another, Zatler v. Wainwright, 802 F.2d 397, 400 (11th Cir.
1986), nor are they guarantors of a prisoner’s safety. Popham v. City of Talladega, 908 F.2d
1561, 1564 (11th Cir. 1990). Rather, a prison official must be faced with a known risk of injury
that rises to the level of a “strong likelihood rather than a mere possibility” before his failure to
protect an inmate can be said to constitute deliberate indifference. Brown v. Hughes, 894 F.2d
1533, 1537 (11th Cir. 1990). Thus, to state an Eighth Amendment failure to protect claim, a

and declining to decide issue). However, because the Eleventh Circuit explicitly addressed this issue in
Melton, this Court will apply the “more than mere negligence” standard.
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plaintiff must show that the defendant knew the plaintiff faced a risk of injury and that risk was a
strong likelihood.
Plaintiff contends Defendant Chapman knew Plaintiff had been assaulted by a Bloods
gang member, due to a member’s cousin being killed in Plaintiff’s case, and that the Bloods
members threatened to kill Plaintiff if he came back to the compound. Nevertheless, Defendant
Chapman would not entertain Plaintiff’s requests to either be transferred to another prison or to
be placed on protective custody and threatened to either put Plaintiff back on the compound or
placed in the Tier II program. (Doc. 1, p. 3.) Accordingly, Plaintiff states a colorable deliberate
indifference claim against Defendant Chapman.
II.

Plaintiff’s Conditions of Confinement Claim
It appears Plaintiff also is attempting to set forth a conditions of confinement claim

regarding the conditions he faced in administrative segregation since December 19, 2016.
(Doc. 1, pp. 3–4.) However, Plaintiff fails to provide the name(s) of any person(s) responsible
for the conditions of his confinement since this date. Thus, the Court should DISMISS without
prejudice Plaintiff’s conditions of confinement claims based on Plaintiff’s failure to meet the
most basic pleading requirement. See Fed. R. Civ. P. 8 (“A pleading that states a claim for relief
must contain [among other things] . . . a short and plain statement of the claim showing that the
pleader is entitled to relief.”); Iqbal, 556 U.S. at 678; Hale, 50 F.3d at 1582.
In addition, Plaintiff’s conditions of confinement claims do not appear to be related to
Plaintiff’s deliberate indifference to safety claims against Defendant Chapman. A plaintiff may
not join claims and various defendants in one action unless the claims “arise out of the same
transaction, occurrence, or series of transactions or occurrences; and any question of law or fact
common to all defendants will arise in the action.” Fed. R. Civ. P. 20(a). Accordingly, the Court

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should DISMISS without prejudice Plaintiff’s conditions of confinement claim as being
unrelated to Plaintiff’s deliberate indifference claim.
III.

Leave to Appeal in Forma Pauperis
Should the Court adopt my recommendation that Plaintiff’s conditions of confinement

claim should be dismissed, the Court should also deny Plaintiff leave to appeal in forma pauperis
as to the dismissed claim. 2 Though Plaintiff has, of course, not yet filed a notice of appeal, it
would be appropriate to address these issues in the Court’s order of dismissal. Fed. R. App. P.
24(a)(3) (trial court may certify that appeal is not taken in good faith “before or after the notice
of appeal is filed”).
An appeal cannot be taken in forma pauperis if the trial court certifies that the appeal is
not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this
context must be judged by an objective standard. Busch v. County of Volusia, 189 F.R.D. 687,
691 (M.D. Fla. 1999). A party does not proceed in good faith when he seeks to advance a
frivolous claim or argument. See Coppedge v. United States, 369 U.S. 438, 445 (1962). A claim
or argument is frivolous when it appears the factual allegations are clearly baseless or the legal
theories are indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v.
Gross, 984 F.2d 392, 393 (11th Cir. 1993). Stated another way, an in forma pauperis action is
frivolous, and thus, not brought in good faith, if it is “without arguable merit either in law or
fact.” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown v. United States,
Nos. 407CV085, 403CR001, 2009 WL 307872, at *1–2 (S.D. Ga. Feb. 9, 2009).
Based on the above analysis of Plaintiff’s action, there are no non-frivolous issues to
raise on appeal, and an appeal would not be taken in good faith. Thus, the Court should DENY
Plaintiff in forma pauperis status on appeal as to any dismissed claims.
2

A certificate of appealability is not required in this Section 1983 action.
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CONCLUSION
For the reasons set forth above, I RECOMMEND the Court DISMISS without
prejudice Plaintiff’s conditions of confinement claim. Additionally, the Court should DENY
Plaintiff leave to appeal in forma pauperis as to this claim. However, Plaintiff arguably states a
colorable deliberate indifference to safety claim against Defendant Chapman.
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the Complaint must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action.
Upon receipt of Objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final
judgment entered by or at the direction of a District Judge. The Court DIRECTS the Clerk of
Court to serve a copy of this Report and Recommendation upon Plaintiff.

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REMAINING CLAIM AND DEFENDANT
As stated above, Plaintiff states a colorable deliberate indifference to safety claim against
Defendant Chapman. Consequently, a copy of Plaintiff’s Complaint, (doc. 1), and a copy of this
Order shall be served upon Defendant Chapman by the United States Marshal without
prepayment of cost. The Court also provides the following instructions to the parties that will
apply to the remainder of this action and which the Court urges the parties to read and follow.
INSTRUCTIONS TO DEFENDANT
Because Plaintiff is 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 defendant by first-class mail and request that the
defendant waive formal service of summons. Fed. R. Civ. P. 4(d); Local R. 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 Plaintiff upon oral examination. Fed. R. Civ. P. 30(a). Defendant is further
advised that the Court’s standard 140-day discovery period will commence upon the filing of the
last answer. Local R. 26.1. Defendant shall ensure that all discovery, including Plaintiff’s
deposition and any other depositions in the case, is completed within that discovery period.

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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 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 questions 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 setting forth the name of the court, the title of the action, [and]
the file number.” Fed. R. Civ. P. 10(a).
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 R. 11.1.
Plaintiff’s failure to notify the Court of a change in his address 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. The discovery period in this case will expire 140 days
after the filing of the last answer. Local R. 26.1. Plaintiff does not need the permission of the

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Court to begin discovery, and Plaintiff should begin discovery promptly and complete it within
this time period. Local R. 26.1. 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. Local R. 26.4.
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 a defendant. 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 R. 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 cents ($.50) per page. If Plaintiff seeks copies, he should request them directly
from the Clerk of Court and is advised that the Court will authorize and require the
collection of fees from his prison trust fund account to pay the cost of the copies at the
aforementioned rate of fifty cents ($.50) per page.

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If Plaintiff does not press his case forward, the court may dismiss it for want of
prosecution. Fed. R. Civ. P. 41; Local R. 41.1.
It is Plaintiff’s duty to cooperate fully in any discovery which Defendant may initiate.
Upon no less than five (5) days’ notice of the scheduled deposition date, 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 R. 7.5. Therefore, if Plaintiff fails to
respond to a motion to dismiss, the Court will assume that he does not oppose the Defendant’s
motion. Plaintiff’s case may be dismissed for lack of prosecution if Plaintiff fails to respond to a
motion to dismiss.
Plaintiff’s response to a motion for summary judgment must be filed within twentyone (21) days after service of the motion. Local R. 7.5, 56.1. The failure to respond to such a

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motion shall indicate that there is no opposition to the motion. Furthermore, each material fact
set forth in 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, Plaintiff is advised that he 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 Defendant’s motion for
summary judgment be supported by affidavit, Plaintiff must file counter-affidavits if he desires
to contest Defendant’s statement of the facts. Should Plaintiff fail to file opposing affidavits
setting forth specific facts showing that there is a genuine dispute for trial, any factual assertions
made in Defendant’s affidavits will be accepted as true and summary judgment may be entered
against Plaintiff pursuant to Federal Rule of Civil Procedure 56.
SO ORDERED and REPORTED and RECOMMENDED, this 21st day of May, 2018.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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