Brown v. Jackson et al

Filing 19

ORDER that a copy of Plaintiff's Complaint, Documents Numbered 3 and 18, and a copy of this Order shall be served upon Defendants Shuemake, Hutchenson, and Ford by the United States Marshal. Signed by Magistrate Judge James E. Graham on 1/25/2013. (csr)

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

u s.

COURII

11I3 JAN 25 A Ia.
JOHNATHAN HEART BROWN,

rL p '
:

Plaintiff,
CIVIL ACTION NO.: CV612-099

V.

Lt. R. L. JACKSON; Sgt. SHUEMAKE,
CO Sgt. HUTCHENSON; CO Lt. FORD;
and BRUCE CHATMAN, Warden,
Defendants.

ORDER and MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Plaintiff, who is currently housed at Macon State Prison in Oglethorpe, Georgia,
filed a cause of action pursuant to 42 U.S.C. § 1983 contesting certain conditions of his
confinement while he was incarcerated at Georgia State Prison in Reidsville, Georgia.
The undersigned informed Plaintiff that the claims he set forth in his Complaint
appeared to be unrelated and directed Plaintiff to advise the Court as to which claim he
wished to pursue. Plaintiff responded to that Order and advised the Court that he does
not wish to pursue his claims against Defendant Jackson stemming from events
allegedly occurring on August 5, 2012, or his claims against Defendant Chatham. (Doc.
No. 18). Accordingly, Plaintiff's claims against Defendant Chatham and against
Defendant Jackson should be DISMISSED, without prejudice, and Defendants Jackson
and Chatham should be DISMISSED as named Defendants.

AU 72A
(Rev. 8/82)

I
I

I

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
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 § 1915A(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 Defendants Shuemake, Hutchenson, and Ford failed to
protect him from a known threat to his safety. Specifically, Plaintiff asserts that his
cellmate assaulted him on August 21, 2012. Plaintiff also asserts that his celimate was

AO 72A
(Rev. 8/82)

2

a member of a gang and that another member of this gang assaulted Plaintiff
approximately two (2) weeks before this assault. Plaintiff alleges that these Defendants
allowed his celimate to assault him for several moments before stopping the assault.
The Eighth Amendment imposes duties on prison officials such as the duty to
take reasonable measures to ensure the safety of inmates. Farmer v. Brennan, 511
U.S. 825, 828 (1994). This right to safety is violated when prison officials show a
deliberate indifference to a substantial risk of serious harm. Carter v. Galloway, 352
F.3d 1346, 1349 (1 1th Cir. 2003) (citing Farmer, 511 U.S. at 828).
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 Shuemake, Hutchenson, and Ford. A copy of Plaintiff's Complaint,
Documents Numbered 3 and 18, and a copy of this Order shall be served upon
Defendants Shuemake, Hutchenson, and Ford by the United States Marshal without
prepayment of cost. If any Defendant 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

tID

proceed in forma pauperis, service must be

made 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 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

AO 72A
(Rev. 8/82)

3

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 Plaintiffs deposition and any other depositions in the
case are taken within the 140-day discovery period allowed by this court's local rules.
Local Rule 26.1(d)(i).
In the event Defendants take the deposition of any other person, he is 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. Qv.
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

AO 72A
(Rev. 8/82)

4

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 discovefy, and Plaintiff should begin discovery promptly
and complete it within 140 days after the filing of the answer. Local Rule 26.1(d)(i).
Interrogatories are a practical method of discovery for incarcerated persons. See
FED. R. Civ. P. 33. Interrogatories may be served only on a iartv 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 the Defendant.
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

AO 72A
(Rev. 8/82)

5

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.
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 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

AO 72A
(Rev. 8/82)

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
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 and REPORTED and RECOMMENDED, this

day of

January, 2013.

JA4ES E. GRAHAM
UI4(TED STATES MAGISTRATE JUDGE

AO 72A
(Rev. 8/82)

7