Garmom v. Paul et al
Filing
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ORDER directing the United States Marshal to serve a copy of Plaintiff's Complaint and a copy of this Order upon Defendants Paul, Brewton, and Chatman. 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 6/28/2013. (csr)
IN THE UNITED STATES DISTRlfcq
COURT
FOR THE SOUTHERN DISTRICT OJ 3OR3IA '/
STATESBORO DIVISION
iifl3 IN 2 A W
CHARLES KEVIN GARMON,
:
Plaintiff,
CIVIL ACTION NO.: CV613-059
V.
JOHN PAUL; LARRY BREWTON;
and BRUCE CHATMAN;
Defendants.
ORDER
Plaintiff Charles Kevin Garmon ("Garmon"), an inmate currently incarcerated at
Georgia State Prison in Reidsville, Georgia, filed a cause of action pursuant to 42
U.S.C. § 1983 contesting 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); Walkerv. Duqer, 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).
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In Mitchell v. Farcass, 112 F3d 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.
Garmon asserts that he experienced a sexual assault while incarcerated at
Rutledge State Prison.' Garmon contends that he informed Defendants of the past
sexual assault by Ashwood Tyrone and that he is currently "experiencing similar
circumstances with an inmate named 'Jerome'," (Doc. No, 1, p. 6). Garmon asserts
that he requested to be placed in protective custody on December 21, 2012 due to the
ongoing sexual harassment and assault. Plaintiff alleges that Defendants have ignored
his requests for help, and as a result he has "cut several times" in order to be placed in
suicide protection. (j). Plaintiff claims to have completed the grievance process and
filed the instant Complaint after receiving denials at all levels.
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
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Garmon attaches a "Witness Statement" dated August 17, 2011, detailing the sexual assault. The form
lists Georgia State Prison in the "place" section, but in his Complaint Plaintiff claims the statement
describes events which occurred at Rutledge State Prison.
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deliberate indifference to a substantial risk of serious harm. Carter v. Galloway, 352
F.3d 1346, 1349(11th Cir. 2003) (citing Farmer, 511 U.S. at 828).
These allegations, when read in a light most favorable to the Plaintiff, arguably
state colorable claims for relief under 42 U.S.C. § 1983 and 28 U.S.C. § 1915A against
Defendants Paul, Brewton, and Chatman. A copy of Plaintiffs Complaint and a copy of
this Order shall be served upon Defendants Paul, Brewton, and Chatman 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)(3). 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).
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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 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, 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, 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(s), 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.
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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. age ge nerally 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.
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 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(s) for
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)(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.
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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 evasive or incomplete responses to questions will not be tolerated and may
subject Plaintiff to severe sanctions, including d ismissal 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.
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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 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
.22s
day of June, 2013.
- / r-------E. GRAHAM
D STATES MAGISTRATE JUDGE
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