Perkins v. Upton et al

Filing 16

ORDER of Instruction to parties. Order dismisses without prejudice Steve Upton, David Dashier, James Donald, Brian Owens, Brenda Murrell, Shevondah Fields, Tom Sittnick, and Wayne Hall. A copy of Plaintiff's Complaint, Document Numbers 12 and 13, and a copy of this Order shall be served upon Defendants Reardon and Kennedy by the U.S. Marshal without prepayment of cost. Signed by Judge B. Avant Edenfield on 10/28/08. (evb)

IN THE UNTED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA STATESBORO DIVISION

STEPHEN PERKINS, Plaintiff, vs. STEVE UPTON, Warden; DAVID DASHER; RUSTY REARDON; JIMMY KENNEDY; JAMES DONALD; BRIAN OWENS; BRENDA MURRELL; SHEVONDAH FIELDS; TOM SITTNICK, and Lt. WAYNE HALL, Defendants. CIVIL ACTION NO.: CV608-056

ORDER By Order dated September 9, 2008, Magistrate Judge James E. Graham informed Plaintiff that his various claims against the named Defendants did not appear to be related to each other. Magistrate Judge Graham directed Plaintiff to advise the Court as to which claim or related claims he wished to pursue, and Plaintiff has responded to this Order. Plaintiff asserts he wishes to pursue his claim that Defendants Reardon and Kennedy violated his right to due process during the disciplinary hearing proceedings. Accordingly, Plaintiff's remaining claims, which are against Defendants Steve Upton, David Dashier, James Donald, Brian Owens, Brenda Murrell, Shevondah Fields, Tom Sittnick, and Wayne Hall are DISMISSED, without prejudice. According to Plaintiff, he asked Defendants Reardon and Kennedy to have witnesses at the disciplinary hearing and his request was denied. Plaintiff also asserts

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the disciplinary report which Defendant Kennedy read during the hearing was different than the one which was served on Plaintiff. The Due Process Clause of the Fourteenth Amendment provides no state 'shall. · deprive any person of life, liberty, or property, without due process of law." U.S. CONST. amend XIV, § 1. "Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property." Arrington v. Helms, 438 F.3d 1336, 1347 (11th Cir. 2006). "An inmate states a cognizable claim for the deprivation of his procedural due process rights under the Fourteenth Amendment when he alleges the deprivation of a constitutionally protected liberty or property interest, state action, and constitutionally inadequate process." kL Constitutionally adequate process requires compliance with the minimum due process protections accorded to an inmate in prison disciplinary proceedings: (1) the right to receive written notice of the charges against him at least 24 hours before his hearing; (2) the right to call witnesses and present documentary evidence, where doing so would not be unduly hazardous to institutional safety or correctional goals; and (3) the right to receive a written statement setting forth the disciplinary committee's findings of fact. Wolff v. McDonnell, 418 U.S. 539, 563-66 (1974). Based on Plaintiff's claim that his right to due process was violated during the disciplinary proceedings, he arguably sets forth a colorable claim for relief against Defendants Reardon and Kennedy. A copy of Plaintiff's Complaint, Document Numbers 12 and 13, and a copy of this Order shall be served upon Defendants Reardon and Kennedy by the United States Marshal without prepayment of cost. If either Defendant

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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 effected by the United States Marshal. FED. R. Civ. P. 4(c)(2). In most cases, the marshal will first mail a copy of the complaint to Defendants by first-class 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, defendants who timely return the waiver are 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-da y discovery Deriod 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, 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

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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 qeneraj!y 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. Interrogatories are a practical method of discovery for incarcerated persons. FED. R. Civ. P. 33. Interrogatories may be served only on a řart y to the litigation, and,

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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 shall not be filed with the court. Local Rule 26.6. Interrogatories are not to contain more than twenty-five (25) questions. FED. ft 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 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.

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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 re q uired 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 fifteen (15) 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 (20) 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 issue 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

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Defendants' statement of the facts. Should you fail to file opposing affidavits setting forth specific facts showing that there is a genuine issue 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. SOORDERED, this of ______________________, 2008.

B. AVANTEDENFIEL ,JDGE / UNITED STATES DIS ICT COtJRT SOUTHERN DISTRIQ OF GEORGIA

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