Sewell v. Chatman et al

Filing 9

ORDER directing the United States Marshal to serve a copy of Plaintiff's Complaint and a copy of this Order upon Defendants Chatman, Paul, Fowler, Brewton, and Davis. 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 9/24/2014. (csr)

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

JEFFERY SEWELL,
Plaintiff,
CIVIL ACTION NO.: CV614-067

V.

BRUCE CHATMAN; WINDELL
FOWLER; LARRY BREWTON;
JOHN PAUL; FREDDIE DAVIS;
and GEORGIA DEPARTMENT
OF CORRECTIONS,
Defendants.

ORDER and MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Plaintiff, who is currently incarcerated at Georgia State Prison in Reidsville,
Georgia, filed a cause of action pursuant to 42 U.S.C. § 1983. 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. DuQqer, 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

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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 asserts that he informed Defendants Chatman, Fowler, Paul, and
Brewton on several occasions that he was incorrectly labeled a member of the "MOB"
gang, even though he is a Muslim and his religion does not allow affiliation with a gang.
Plaintiff contends that the MOB "was heavily at war with the bloods and the crips. This
war had led to the death of inmates and many [severely] injured." (Doc. No. 1, p. 7).
Plaintiff contends that Defendant Brewton placed him in a cell with a known leader of
the crip gang. Plaintiff contends that he wrote Defendants Chatman, Fowler, Paul, and
Brewton and spoke to them about being in fear for his life, particularly because he had
been falsely labeled as a member of the MOB gang. Plaintiff contends that he was
awakened by his roommate who was holding a homemade knife to his neck. Plaintiff

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contends his roommate stabbed him numerous times after telling him that Defendant
Davis showed him Plaintiffs file which showed Plaintiff's false gang affiliation.'
The Eighth Amendment's proscription against cruel and unusual punishment
imposes a constitutional duty upon prison officials to take reasonable measures to
guarantee the safety and health of prison inmates. "To show a violation of [his] Eighth
Amendment rights, [a p]laintiff must produce sufficient evidence of (1) a substantial risk
of serious harm; (2) the defendants' deliberate indifference to that risk; and (3)
causation." Smith v. Reg'I Dir. of Fla. Der't of Corr., 368 F. App'x 9, 14 (11th Cir. 2010)
(quoting Purcell ex rel. Estate of Morgan v. Toombs Cntv., Ga., 400 F.3d 1313, 1319
(11th Cir. 2005)).
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 Chatman, Paul, Fowler, Brewton, and Davis for alleged deliberate
indifference. A copy of Plaintiff's Complaint and a copy of this Order shall be served
upon Defendants Chatman, Paul, Fowler, Brewton, and Davis 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
Even though Plaintiff is not proceeding in forma pauperis, the undersigned
directs the United States Marshals Service to serve Plaintiff's Complaint. FED. R. Civ. P.

The Clerk of Court inadvertently added "Georgia Department of Corrections" as a named Defendant
upon the docket of this case. Plaintiff did not name the Georgia Department of Corrections as a
Defendant, nor does he make any allegations against this entity. The Georgia Department of Corrections
should be DISMISSED as a named Defendant.
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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).
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).

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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
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.
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 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

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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 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.
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 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

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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.
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

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and summary judgment will be entered against the Plaintiff pursuant to Federal Rule of
Civil Procedure 56.

SO ORDERED and REPORTED and RECOMMENDED, this

2

' day of

September, 2014.

i1ES E. GRAHAM
]TED STATES MAGISTRATE JUDGE

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