Patel v. Owens et al

Filing 2

ORDER that a copy of Plaintiff's Complaint and a copy of this Order shall be served upon Defendant Brewton by the U.S. Marshal. Signed by Magistrate Judge James E. Graham on 1/22/2013. (csr)

IN THE UNITED STATES DISTRICT COt
COURT
FOR THE SOUTHERN DISTRICT OF GEORGFANF•<, my
STATESBORO DIVISION
23 JAN 22 P I: tiO
SUBODI-ICHANDRA T. PATEL,
Plaintiff,

CLEL2
SO. 0151. OF 0

—
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CIVIL ACTION NO.: CV612-105

V.

BRIAN OWENS; BRUCE
CHATMAN; and JANET
BREWTON,
Defendants.

ORDER and MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Plaintiff, who is currently housed at Georgia State Prison in Reidsville, Georgia,
filed a cause of action pursuant to 42 U.S.C. § 1983 contesting certain conditions of his
confinement. 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. Duciger, 860 F.2d 1010, 1011
(11th Cii. 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).

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In Mitchell v. Farcass, 112 F.3d 1433, 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 asserts that Defendant Brewton confiscated his legal materials as
retaliation for Plaintiff filing grievances against Defendant Brewton. Plaintiff contends
that Defendant Owens, the Commissioner of the Georgia Department of Corrections, is
responsible for Defendant Brewton's actions because he is the policymaker for all
Georgia prisons. Plaintiff also contends that Defendant Chatham, the Warden at
Georgia State Prison, failed to correct and "covered up" Defendant Brewton's actions.
(Doc. No. 1, p. 9)1
Plaintiff makes no factual allegations in his Complaint against Defendants Owens
and Chatham which reveal that he is entitled to any relief from either of them. A plaintiff
must set forth "a short and plain statement of the claim showing that [he] is entitled to
relief."

FED, R. Civ. P. 8(a)(2). As Plaintiff has failed to make sufficient factual

allegations against Defendants Owens and Chatham, his claims against Defendants
Owens and Chatham should be DISMISSED.

This is the entirety of Plaintiffs claims against Defendants Owens and Chatham.
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In addition, it appears Plaintiff seeks to hold Defendants Owens and Chatham
liable based solely on their positions as Commissioner and Warden. In section 1983
actions, liability must be based on something more than a theory of respondeat
superior. Braddv v. Fla. De't of Labor & Employment 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. As Plaintiff has failed to make this basic
showing, his claims against Defendants Owens and Chatham should be DISMISSED
for this reason, as well.
Access to the courts is clearly a constitutional right, grounded in the First
Amendment, the Article IV Privileges and Immunities Clause, the Fifth Amendment,
and/or the Fourteenth Amendment." Chappell v. Rich, 340 F.3d 1279, 1282 (11th Cir.
2003) (citing Christopher v. Harburv, 536 U.S. 403, 415 n.12 (2002)). In order to pass
constitutional muster, the access allowed must be more than a mere formality. Bounds
v. Smith, 430 U.S. 817, 822 (1977); Chajppell, 340 F.3d at 1282. The access must be
"adequate, effective, and meaningful." Bounds, 730 U.S. at 822. For an inmate to state
a claim that he was denied access to the courts, he must establish that he suffered
"actual injury" by showing that the defendant's actions hindered his ability to pursue a
nonfrivolous claim. Christopher, 536 U.S. at 415; Jackson v. State Bd. of Pardons &
Paroles, 331 F.3d 790, 797 (11th Cir. 2003). The pursuit of claims which are protected
are those in which a plaintiff is attacking his sentence, directly or collaterally, or
challenging the conditions of his confinement. See Lewis v. Casey, 518 U.S. 343
(1996). Stated another way, the "only specific types of legal claims [which] are

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protected by this right [are] the nonfrivolous prosecution of either a direct appeal of a
conviction, a habeas petition, or a civil rights suit." Hyland v. Parker, 163 F. App'x 793,
798 (11th Cir. 2006) (citing Bass v. Sinqljy, 143 F.3d 1442, 1445 (11th Cir. 1998)).
Actual injury" is an essential element to a claim asserting the denial of access to the
courts. See Christopher, 536 U.S. at 415.
Plaintiff submitted a copy of an order issued by the Honorable Charles Rose, Jr.,
which indicates that Plaintiff shall have a hearing on his state habeas corpus petition on
February 27, 2013. (Doc. No. 1, p. 27). As it appears that Plaintiff has not shown he
has suffered an actual injury due to the alleged confiscation of his legal materials, his
access to the courts claim also should be DISMISSED.
However, "[t]o state a First Amendment claim for retaliation, a prisoner need not
allege violation of a separate and distinct constitutional right." Farrow v. West, 320 F.3d
1235, 1248 (11th Cir. 2003) (internal citations omitted). Rather, "[tjhe gist of a
retaliation claim is that a prisoner is penalized for exercising the right of free speech." I d.
A prisoner can establish retaliation by demonstrating that the prison official's actions
were "the result of his having filed" a grievance "concerning the conditions of his
imprisonment." See id.
These allegations, when read in a light most favorable to the Plaintiff, arguably
state a colorable claim for relief against Defendant Brewton. A copy of Plaintiff's
Complaint and a copy of this Order shall be served upon Defendant Brewton by the
United States Marshal without prepayment of cost. If Defendant Brewton elects to file a
Waiver of Reply, then she must file either a dispositive motion or an answer to the
complaint within thirty (30) days of the filing of said Waiver of Reply.

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INSTRUCTIONS TO DEFENDANT
Plaintiff is not proceeding in forma pauperis. However, due to Plaintiffs status
as a prisoner, the Court directs the United States Marshal to serve Plaintiffs Complaint.
FED. R. Civ. P. 4(c)(2). 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 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 the Plaintiff upon oral examination. FED. R. Civ. P. 30(a). The
Defendant shall ensure that the Plaintiff's deposition and any other depositions in the
case are taken within the 140-day discovery øeriod allowed by this court's local rules
Local Rule 26.1(d)(i).
In the event Defendant takes 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 Defendant shall
notify Plaintiff of the deposition and advise him that he may serve on the Defendant, in a
sealed envelope, within ten (10) days of the notice of deposition, written questions the

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Plaintiff wishes to propound to the witness, if any. The Defendant shall present such
questions to the witness seriatim during the deposition. FED. ft 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
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 Defendant, 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 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 party 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 26.4. 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 attorney for the
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); 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 Defendant. 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 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 Defendant's motion.
Your response to a motion for summary judgment must be filed within twenty one
(2 1) 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 Defendant's statement of material facts will be
deemed admitted unless specifically controverted by an opposition statement. Should
the Defendant 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 Defendant's motion for summary judgment
be supported by affidavit, you must file counter-affidavits if you desire to contest the
Defendant's statement of the facts. Should you fail to file opposing affidavits setting

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forth specific facts showing that there is a genuine dispute for trial, the consequences
are these: any factual assertions made in Defendant's 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.

'3A1ES E. GRAHAM
UNITED STATES MAGISTRATE JUDGE

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