Turner v. Dasher et al

Filing 24

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 13 Report and Recommendations. Defendant's Dekele, Lane, King, Lilliard, Dasher, Paul, and Brewton are dismissed as named defendants from this action. Signed by Judge B. Avant Edenfield on 1/30/2012. (loh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
LbL
STATESBORO DIVISION

MARVIN TURNER,
Plaintiff,
:

V.

CIVIL ACTION NO.: CV6II-098

DANE DASHER; JOHN PAUL; LARRY
BREWTON; Officer DEKELE; Officer
LANE; Officer KING-' LILLIARD;
Officer THOMAS; Sgt. SMITH; Officer
GORDON; Lt. SANDERS; Officer
TOOTLE; Officer MOBLEY; Officer
WADE; Officer HURTADO; Officer
BERRY; and DON JARRIEL,
Defendants.
ORDER
After an independent and de novo review of the entire record, the undersigned
concurs with the Magistrate Judge's Report and Recommendation, to which Objections1
were filed. In his Objections, Plaintiff contends that the Magistrate Judge erred in
recommending that his claims against Defendants Thomas, Dekele, Lane, King, Lilliard,
Brewton, Paul, and Dasher stemming from events which allegedly occurred on August
25, 2009, be dismissed. According to Plaintiff, he notified the Clerk's Office that he
wished to pursue his claims stemming from August 25, 2009, events, which were listed
as "Claim I" in his original Complaint. There is no record on the docket of this case of
such a letter or notice. Additionally, it seems clear from Plaintiff's response to the
Magistrate Judge's September 27, 2011, Order that Plaintiff did not wish to pursue
1 Plaintiff

filed Objections at docket entries numbered 15 and 16; however, the Objections at docket entry
number 16 are nothing more than a photocopy of Plaintiffs original Objections.

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those claims in this cause of action. Should Plaintiff wish to pursue any claims
stemming from alleged events occurring on August 25, 2009, he may file a separate
cause of action.
Plaintiff also contends that the Magistrate Judge erred by not ordering service of
his Complaint on Defendants Dasher, Paul, and Brewton. Plaintiff asserts that
Defendant Dasher, Paul, and Brewton were in a position to intervene on his behalf
when they learned Plaintiff was placed on "stripped cell status". (Doc. No. 15, p. 3).
However, a review of Plaintiffs allegations against Dasher, Paul, and Brewton reveals
that he seeks to hold these individuals liable based solely on their supervisory positions.
The Magistrate Judge's Report and Recommendation is adopted as the opinion
of the Court. Plaintiffs claims against Defendants Thomas, Dekele, Lane, King, and
Lilliard stemming from events which allegedly occurred on August 25, 2009, are
DISMISSED, without prejudice. Plaintiffs claims against Dasher, Paul, and Brewton are
DISMISSED. Plaintiff's deprivation of property claim against Defendants Gordon and
Smith is DISMISSED. Defendants Dekele, Lane, King, Lilliard, Dasher, Paul, and
Brewton are DISMISSED as named Defendants from this cause of action.
The Magistrate Judge noted in his Order that Plaintiff asserted that Defendants
Jarriel, Smith, and Gordon were present during the excessive use of force incident, and
the Magistrate Judge also noted that officers present during an excessive use of force
incident could be liable for their nonfeasance. However, the Magistrate Judge
inadvertently failed to direct service of Plaintiff's Complaint on Defendants Smith and
Gordon. Plaintiffs allegations against Smith and Gordon arguably state a colorable
claim for relief under 42 U.S.C. § 1983 and 28 U.S.C. § 1915A. A copy of Plaintiff's

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Complaint, Documents Numbered 8 and 13, and a copy of this Order shall be served
upon Defendants Smith and Gordon by the United States Marshal without prepayment
of cost. If either Defendant elects to file a Waiver of Reply, then he or she must file
either a dispositive motion or 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 the Defendants by first-class mail and
request that the Defendants 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 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-da y discovery period allowed by this court's local rules.
Local Rule 26.1(d)(i).

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In the event Defendants take the deposition of any other person, they 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, 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).
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.

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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 generall 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 140 days after the filing of the answer. Local Rule 26.1 (d)(1).
Interrogatories are a practical method of discovery for incarcerated persons. See
FED. R. Civ. P. 33. Interrogatories may be served only on a rart y 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 26.4. 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.
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.

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It is the Plaintiff's 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 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 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

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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, this

, 2012.

, day of

B ioV\NTEDENFI

UNITED STATES
SOUTHERN DISh

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7

JUDGE
RICT COURT
OF GEORGIA