Hayles v. Jarriel et al

Filing 47

ORDER adopting in part re 11 Report and Recommendations and dismissing the Georgia Department of Corrections as a defendant. The Clerk is directed to prepare USM forms for service on defendants Jarriel and Howard. Signed by Judge B. Avant Edenfield on 11/19/10. (bcw)

Hayles v. Jarriel et al

Doc. 47

nuo U.S. DSTR1CT COURT

IN THE UNITED STATES DISTRICT COURT SNH OV. FOR THE SOUTHERN DISTRICT OF GEORGIA STATESBORO DIVISION 2I0 NOV 19 AM 9: 18 WINSTON HAYLES, Plaintiff,
V.

CL E RI _7L SO. rnL OF GA.

CIVIL ACTION NO.: CV610-031

DON JARRIEL; TARMARSHE SMITH; KAREN DEKLE; GEORGIA DEPARTMENT OF CORRECTIONS; C. HOWARD; and BARRY SMITH, M.D., Defendants. ORDER After an independent and de novo review of the entire record, the undersigned concurs, in part, with the Magistrate Judge's Report and Recommendation, to which Objections, as supplemented, have been filed. Plaintiff did not file objections to the Magistrate Judge's recommendation that the Georgia Department of Corrections be dismissed as a named Defendant. Accordingly, the Georgia Department of Corrections is DISMISSED as a Defendant in this case for the reasons set forth in the Magistrate Judge's Report and Recommendation. In his Objections, Plaintiff asserts that Don Jarriel, the Warden at Georgia State Prison, was notified by Plaintiffs family of the unconstitutional actions of his subordinates and failed to act based on this information. Plaintiff also asserts that Jarriel lied to his family in an attempt to conceal the alleged assault Plaintiff suffered and failed to see that Plaintiff was given medical attention after he spoke with Plaintiffs family. Plaintiff further asserts that Defendant Jarriel failed to train prison guards to

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recognize when an inmate needs medical attention. Plaintiff contends that Defendant Jarriel also failed to train prison guards about other possible violations of the Eighth Amendment, which caused Defendant Tarmarshe Smith to "act with evil motive." (Doc. No. 14, p. 2). Finally, Plaintiff contends that Defendant Jarriel failed to take precautions to ensure Plaintiffs safety. In section 1983 actions, liability must be based on something more than a theory of respondeat superior. Braddy v. Fla. Dep't of Labor & Em p lo y ment 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. In addition, Plaintiff states that he sent two (2) medical requests pertaining to the alleged injuries he suffered as a result of the assault, and Defendant C. Howard refused to provide Plaintiff with medical care. The Eighth Amendment imposes a duty to safeguard inmates, which also embodies the principle expressed by the Supreme 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 a colorable claim for relief under 42 U.S.C. § 1983 and 28 U.S.C. § 1915A against Defendants Jarriel and Howard. A copy of Plaintiff's Complaint, Amended Complaint, Objections (Doc. Nos. 14 and 30), and a copy of this Order shall be served upon Defendants Jarriel and Howard by the United States Marshal without prepayment of cost. if either Defendant elects to file a Waiver of Reply, then he must file either a

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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, 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 Defendant takes 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,

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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 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 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 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 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. 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 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 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 issue 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 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 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. SO ORDERED, this ./$!i'ay of 2010.

Bf AVANT1' EDENFIE 'J U DE UNITED STATES Dl RICT'COURT SOUTHERN DISTRI OF GEORGIA

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