Smith v. Owens et al

Filing 9

ORDER directing United States Marshal Service of Complaint and a copy of this Order; generally, a defendant who timely returns the waiver is not required to answer the complaint until sixty days after the date that the marshal sent the request for waiver. Signed by Magistrate Judge James E. Graham on 12/26/2012. (csr)

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

FILED
U.s. DISTRICT C OL
Di

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BRAJA SMITH,

CLEflK(
Sfl.D1 CGt

Plaintiff,

CIVIL ACTION NO.: CV612-107

V.

BRIAN OWENS; BRUCE CHATMAN;
LARRY BRUTON; STEVE UPTON;
JOHN PAUL; and WINDELL FOWLER,
Defendants.

ORDER
Plaintiff Braja Smith ("Plaintiff'), an inmate currently incarcerated at Georgia
State Prison in Reidsville, Georgia, filed an action pursuant to 42 U.S.C. § 1983 .1 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 and 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

Plaintiff filed an Amended Complaint which is identical to his original Complaint except that it added one
Defendant and an allegation against that Defendant. Plaintiffs Amended Complaint, (Doc. No. 3), is the
subject of this Order.
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state a claim upon which relief may be 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 Court of
Appeals for the Eleventh Circuit interpreted the language contained in §
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. Although the court in Mitchell interpreted § 1915(e), its interpretation
guides this Court in applying the identical language of § 1915A.
Plaintiff alleges that he has been classified as a "close security inmate" and, as a
result, has been placed "on indefinate [sic] 24 hour lockdown with a celimate." (Doc.
No. 3, p. 5). Plaintiff provides numerous examples of the conditions in "lockdown" that
differ from the conditions in general population.

(ii). Plaintiff alleges that all named

Defendants are responsible for his placement in "lockdown."
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). In order to state a claim for relief
under 42 U.S.C. § 1983, a plaintiff must satisfy two elements. First, a plaintiff must
allege that an act or omission deprived him "of some right, privilege, or immunity
secured by the Constitution or laws of the United States." Hale v. Tallapoosa Cntv., 50
F.3d 1579, 1582 (11th Cir. 1995). Second, a plaintiff must allege that the act or
omission was committed by "a person acting under color of state law."

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Plaintiff might have had a protected liberty interest in remaining in the prison's
general population absent the existence of certain circumstances. See Sandin v.
Conner, 515 U.S. 472 (1995); Magluta v. Samles, 375 F.3d 1269 (11th Cir. 2004).
Plaintiffs allegations, when read in a light most favorable to Plaintiff, arguably state
colorable claims for relief under 42 U.S.C. § 1983 and 28 U.S.C. § 1915A against
Defendants for violation of his Fifth Amendment right to due process.
A copy of Plaintiffs Complaint, as amended, and a copy of this Order shall be
served upon Defendants 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 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).

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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-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, 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, 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 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
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

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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. Seeenerally 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 par-tv 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 26.6. 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 attorney 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.

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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. ft 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 respond shall indicate that there is no opposition to a motion." Local Rule 7.5.

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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 twentyone (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 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
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

-' day of December, 2012.

kMES E. GRAHAM
NITED STATE MAGISTRATE JUDGE

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