White v. Irving

Filing 14

ORDER directing the United States Marshal to serve a copy of Plaintiff's Complaint and a copy of this Order upon Defendant Irving. 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 9/23/2014. (csr)

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

RODERICK MAURICE WHITE,
Plaintiff,
:

V.

CIVIL ACTION NO.: CV614-077

NORMAN IRVING, Corrections Officer,
Defendant.

ORDER
Plaintiff, who is currently housed at Valdosta State Prison in Valdosta, Georgia,
filed a cause of action pursuant to 42 U.S.C. § 1983 contesting certain conditions of his
confinement while he was housed at Georgia State Prison in Reidsville, Georgia. 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

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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 Defendant Irving approached his cell door to serve Plaintiffs
breakfast, and he opened the outside door to the tray box as well as the inside slider at
the same time. Plaintiff alleges that he reached his hand out through the opening, and
Defendant slammed the outside door shut on Plaintiffs hand. Plaintiff asserts that
Defendant was pressing his weight against the door. Plaintiff also asserts that he
attempted to get his hand out of the door using his other hand, trapping both of his
hands. Plaintiff further asserts that Defendant told him several times that he was going
to break Plaintiffs hand. Plaintiff avers that another officer told Defendant to stop what
he was doing. Plaintiff contends that he received cuts and scrapes to his hands, and
these cuts were dripping blood.
It is a well-settled principle that "the unnecessary and wanton infliction of pain. .
constitutes cruel and unusual punishment" in violation of the Eighth Amendment.

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Whitley v. Albers, 475 U.S. 312, 319 (1986) (quoting Ingraham v. Wright, 430 U.S. 651,
670 (1977) (internal quotes omitted)).
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
Defendant Irving for an alleged violation of the Eighth Amendment. A copy of Plaintiff's
Complaint and a copy of this Order shall be served upon Defendant Irving by the United
States Marshal without prepayment of cost. If 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 DEFENDANT
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 the Defendant 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 Defendant is hereby granted leave of court to
take the deposition of the Plaintiff upon oral examination.

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FED. R. Civ. P. 30(a).

Defendant 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 Defendant takes the deposition of any other person, Defendant
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,
Defendant shall notify Plaintiff of the deposition and advise him that he may serve on
Defendant, 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. Defendant 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 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 his
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 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 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 for 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)(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 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.
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.

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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 Defendant's statement of material facts will be
deemed admitted unless specifically controverted by an opposition statement. Should
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
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, this

'-V
d of September, 2014.

I
(MES E. GRAHAM
NITED STATES MAGISTRATE JUDGE

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