Floyd v. Williams

Filing 11

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Plaintiff's claims for monetary relief against Defendant in his official capacity, DISMISS all claims for monetary relief under the RLUIPA, and DISMISS all claims for comp ensatory and punitive damages under Section 1983 re: 1 Complaint filed by Eddie Frank Floyd, III. Additionally, it is RECOMMENDED that the Court DENY Plaintiff's request for a preliminary injunction. Any party seeking to object to this Repo rt and Recommendation is ordered to file specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered. (Objections to R&R due by 1/26/2016). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 1/12/2016. (csr)

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

EDDIE FRANK FLOYD, III,
Plaintiff,

CIVIL ACTION NO.: 6:15-cv-103

v.
WARDEN DOUG WILLIAMS,
Defendant.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, who is currently housed at Smith State Prison in Glenville, Georgia, submitted a
Complaint in the above captioned action pursuant to 42 U.S.C. § 1983 and the Religious Land
Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1, et seq,. (Doc. 1.)
Plaintiff, a practicing Muslim, claims that Defendant has violated his constitutional and statutory
rights by refusing to allow Plaintiff to participate in a religious feast. After careful review, the
Court finds that Plaintiff has arguably stated cognizable claims against Defendant. Accordingly,
the Court DIRECTS the United States Marshal to serve Defendant with a copy of Plaintiff’s
Complaint, (doc. 1), and this Order.
However, I RECOMMEND that the Court DISMISS Plaintiff’s claims for monetary
relief against Defendant in his official capacity, DISMISS all claims for monetary relief under
the RLUIPA, and DISMISS all claims for compensatory and punitive damages under
Section 1983. Additionally, I RECOMMEND that the Court DENY Plaintiff’s request for a

preliminary injunction. The Court provides further instructions to the parties regarding the future
litigation of this action which they are urged to read and follow.
STANDARD OF REVIEW
Plaintiff seeks to bring this action in forma pauperis under 42 U.S.C. § 1983. Under 28
U.S.C. § 1915(a)(1), the Court may authorize the filing of a civil lawsuit without the prepayment
of fees if the plaintiff submits an affidavit that includes a statement of all of his assets and shows
an inability to pay the filing fee and also includes a statement of the nature of the action which
shows that he is entitled to redress. Even if the plaintiff proves indigence, the Court must
dismiss the action if it is frivolous or malicious, or fails to state a claim upon which relief may be
granted. 28 U.S.C. §§ 1915(e)(2)(B)(i)–(ii). Additionally, pursuant to 28 U.S.C. § 1915A, the
Court must review a complaint in which a prisoner seeks redress from a governmental entity.
Upon such screening, the Court must dismiss a complaint, or any portion thereof, that is
frivolous or malicious, or fails to state a claim upon which relief may be granted or which seeks
monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).
When reviewing a Complaint on an application to proceed in forma pauperis, the Court is
guided by the instructions for pleading contained in the Federal Rules of Civil Procedure. See
Fed. R. Civ. P. 8 (“A pleading that states a claim for relief must contain [among other things] . . .
a short and plain statement of the claim showing that the pleader is entitled to relief.”); Fed. R.
Civ. P. 10 (requiring that claims be set forth in numbered paragraphs, each limited to a single set
of circumstances). Further, a claim is frivolous under Section 1915(e)(2)(B)(i) “if it is ‘without
arguable merit either in law or fact.’” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002)
(quoting Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001)).

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Whether a complaint fails to state a claim under Section 1915(e)(2)(B)(ii) is governed by
the same standard applicable to motions to dismiss under Federal Rule of Civil
Procedure 12(b)(6). Thompson v. Rundle, 393 F. App’x 675, 678 (11th Cir. 2010). Under that
standard, this Court must determine whether the complaint contains “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A
plaintiff must assert “more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not” suffice. Twombly, 550 U.S. at 555. Section 1915 also
“accords judges not only the authority to dismiss a claim based on an indisputably meritless legal
theory, but also the unusual power to pierce the veil of the complaint’s factual allegations and
dismiss those claims whose factual contentions are clearly baseless.” Bilal, 251 F.3d at 1349
(quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)).

In its analysis, the Court will abide by the long-standing principle that the pleadings of
unrepresented parties are held to a less stringent standard than those drafted by attorneys and,
therefore, must be liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972); Boxer X v.
Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) (“Pro se pleadings are held to a less stringent
standard than pleadings drafted by attorneys.”) (emphasis omitted) (quoting Hughes v. Lott, 350
F.3d 1157, 1160 (11th Cir. 2003)). However, Plaintiff’s unrepresented status will not excuse
mistakes regarding procedural rules. McNeil v. United States, 508 U.S. 106, 113 (1993) (“We
have never suggested that procedural rules in ordinary civil litigation should be interpreted so as
to excuse mistakes by those who proceed without counsel.”).

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DISCUSSION
Given the lenient standard of review applied at this stage, the Court finds that Plaintiff
has arguably stated plausible claims for violations of his rights secured by the First Amendment
and the RLUIPA. However, as explained below, Plaintiff’s avenues for relief are limited.
I.

Dismissal of Official Capacity Claims for Monetary Relief
Plaintiff cannot sustain a Section 1983 claim for monetary damages against Defendant in

his official capacity. States are immune from private suits pursuant to the Eleventh Amendment
and traditional principles of state sovereignty. Alden v. Maine, 527 U.S. 706, 712–13 (1999).
Section 1983 does not abrogate the well-established immunities of a state from suit without its
consent. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 67 (1989). Because a lawsuit against
a state officer in his official capacity is “no different from a suit against the [s]tate itself,” such a
defendant is immune from suit under Section 1983. Id. at 71. Here, the State of Georgia would
be the real party in interest in a suit against Defendant in his official capacity as an employee of
the Georgia Department of Corrections. Accordingly, the Eleventh Amendment immunizes this
actor from suit in his official capacity. See Free v. Granger, 887 F.2d 1552, 1557 (11th Cir.
1989). Absent a waiver of that immunity, Plaintiff cannot sustain any constitutional claims
against Defendant in his official capacity for monetary relief, and, therefore, the Court should
DISMISS such claims.

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II.

Supervisory Liability Claims
Section 1983 liability must be based on something more than a defendant’s supervisory

position or a theory of respondeat superior. 1 Bryant v. Jones, 575 F.3d 1281, 1299 (11th Cir.
2009); Braddy v. Fla. Dep’t of Labor & Emp’t 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. “To state a claim against a supervisory defendant, the plaintiff must allege
(1) the supervisor’s personal involvement in the violation of his constitutional rights, (2) the
existence of a custom or policy that resulted in deliberate indifference to the plaintiff’s
constitutional rights, (3) facts supporting an inference that the supervisor directed the unlawful
action or knowingly failed to prevent it, or (4) a history of widespread abuse that put the
supervisor on notice of an alleged deprivation that he then failed to correct.” Barr v. Gee, 437 F.
App’x 865, 875 (11th Cir. 2011).
It appears Plaintiff has named Defendant Williams liable based on more than his mere
position as the Warden of Smith State Prison.

Plaintiff alleges that Defendant personally

participated in the alleged constitutional and statutory violations. Moreover, Defendant Williams
is a viable defendant pursuant to Luckey v. Harris, 860 F.2d 1012, 1015–16 (11th Cir. 1988). In
Luckey, the Eleventh Circuit articulated the scope of the Ex Parte Young exception to the
Eleventh Amendment. 860 F.2d at 1015–16 (citing Ex Parte Young, 209 U.S. 123, 157 (1908)).
Specifically, the Court provided:

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The principle that respondeat superior is not a cognizable theory of liability under Section 1983 holds
true regardless of whether the entity sued is a state, municipality, or private corporation. Harvey v.
Harvey, 949 F.2d 1127, 1129–30 (11th Cir. 1992).

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Personal action by defendants individually is not a necessary condition of
injunctive relief against state officers in their official capacity. All that is required
is that the official be responsible for the challenged action. As the Young court
held, it is sufficient that the state officer sued must, ‘by virtue of his office, ha[ve]
some connection’ with the unconstitutional act or conduct complained of.
[W]hether [this connection] arises out of general law, or is specially created by
the act itself, is not material so long as it exists.
Id.
Accordingly, at this early stage, the Court finds that Plaintiff has properly named Warden
Williams as a Defendant.
III.

RLUIPA Claims
Though Plaintiff does not cite the RLUIPA directly, construing his factual allegations

liberally, he invokes that statute.

See Jones v. St. Lawrence, No. CV410-066, 2010

WL 2772440, at *2 (S.D. Ga. July 13, 2010) (“While [the plaintiff] has styled this as a 42 U.S.C.
§ 1983 claim, this case actually arises under both § 1983 and the Religious Land Use and
Institutionalized Persons Act[.]”). The RLUIPA provides:
No government shall impose a substantial burden on the religious exercise of a
person residing in or confined to an institution, as defined in section 1997 of
[Title 42], even if the burden results from a rule of general applicability, unless
the government demonstrates that imposition of the burden on that person(1) is in furtherance of a compelling government interest; and
(2) is the least restrictive means of furthering that compelling government
interest.
42 U.S.C. § 2000cc-1(a). A plaintiff bears “the initial burden of proving” a policy or action
“implicates his religious exercise.” Holt v. Hobbs, ___ U.S. ___, 135 S. Ct. 853, 862 (Jan. 20,
2015). The RLUIPA protects “any exercise of religion, whether or not compelled by, or central
to, a system of religious belief[.]” 42 U.S.C. § 2000cc–5(7)(A). A plaintiff also has the burden

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of establishing the policy or action “substantially burden[s an] exercise of religion.” Holt, ___
U.S. at ___, 135 S. Ct. at 862.
According to Plaintiff, he has been denied the chance to participate in the Eid al-Fitr
feast, a religious feast of importance to Plaintiff’s Islamic faith. (Doc. 1, p. 3.) The Court must
accept such assertions as true in conducting a frivolity review. Additionally, Plaintiff does not
merely name Defendant Williams as a Defendant due to his supervisory status. Rather, he
alleges that Defendant directly made the decision that Plaintiff and others in the Tier II
Administrative Segregation Unit would not receive the feast. Thus, Plaintiff arguably sets forth a
plausible cause of action pursuant to the RLUIPA against Defendant. However, such a claim is
limited to potential injunctive relief.
The “RLUIPA creates a private cause of action for a prison inmate if section 3 is
violated, and further provides that the complaining party, if successful, may ‘obtain appropriate
relief against a government.’” Smith v. Allen, 502 F.3d 1255, 1269 (11th Cir. 2007) (quoting 42
U.S.C. § 2000cc–2(a)), abrogated on other grounds by Sossamon v. Texas, 563 U.S. 277 (2011).
“The phrase ‘appropriate relief’ in [the] RLUIPA encompasses monetary as well as injunctive
relief.” Smith, 502 F.3d at 1271.
However, “a prisoner plaintiff’s right to monetary relief is severely circumscribed by the
terms of the Prisoner Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997(e)(sic).” Id. The
PLRA provides that no federal civil action “may be brought by a prisoner confined in a jail,
prison, or other correctional facility, for mental or emotional injury suffered while in custody
without a prior showing of physical injury.” 42 U.S.C. § 1997(e); see also Napier v. Preslicka,
314 F.3d 528, 532 (11th Cir. 2002) (construing Section 1997(e) as barring a prisoner from

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obtaining compensatory damages for solely mental or emotional harm while he is in custody).
The purpose of this statute is “to reduce the number of frivolous cases filed by imprisoned
plaintiffs, who have little to lose and excessive amounts of free time with which to pursue their
complaints.” Napier, 314 F.3d at 531 (citing Harris v. Garner, 216 F.3d 970, 976–79 (11th Cir.
2000)). Plaintiff has not alleged that he suffered any physical injury as a result of Defendant’s
actions. Moreover, the Eleventh Circuit has held that Section 3 of the RLUIPA (42 U.S.C. §
2000cc-1) “cannot be construed as creating a private action against individual defendants for
monetary damages.” Smith, 502 F.3d at 1275.
For these reasons, the Court should DISMISS Plaintiff’s monetary damages claims under
the RLUIPA.
IV.

Free Exercise Claims
The Free Exercise Clause of the First Amendment “requires government respect for, and

noninterference with, the religious beliefs and practices of our Nation’s people.” Cutter v.
Wilkinson, 544 U.S. 709, 719 (2005). “To establish a violation of his right to free exercise,” a
plaintiff “must first establish that a state actor imposed a ‘substantial burden’ on his practice of
religion.” Wilkinson v. GEO Grp., Inc., No. 14-10215, 2015 WL 1526642, at *2 (11th Cir. Apr.
7, 2015) (citing Church of Scientology Flag Serv. Org., Inc. v. City of Clearwater, 2 F.3d 1514,
1549 (11th Cir. 1993)). To prove that his religious exercise was substantially burdened, a
plaintiff “must present evidence that he was coerced to perform conduct that his religion forbids
or prevented from performing conduct that his religion requires.” Id. The defendants can then
support their conduct on the ground that they applied a “neutral law of general applicability[.]”
Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 879 (1990).

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Prisoners retain their First Amendment rights, including rights under the free exercise of
religion clause.

However, “lawful incarceration brings about the necessary withdrawal or

limitation of many privileges and rights, a retraction justified by the considerations underlying
our penal system.” Brunskill v. Boyd, 141 F. App’x 771, 774 (11th Cir. 2005) (quoting O’Lone
v. Estate of Shabazz, 482 U.S. 342, 348 (1987)). “In the prison context, the state actor can
defend the action if it is ‘reasonably related to legitimate penological interests.’” Wilkinson,
2015 WL 1526642, at *2 (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)). Put succinctly,
“[i]n a prison setting, to demonstrate a free exercise violation, a plaintiff must show that prison
officials administered or implemented a policy or regulation, not reasonably related to any
legitimate penological interest or security measure, which substantially burdens and significantly
interferes with the practice of his religion or restricts his free exercise of a sincerely held
religious belief.” Hosey-Bey v. Williams, No. 2:12-CV-959-WHA, 2015 WL 4988388, at *6
(M.D. Ala. Aug. 19, 2015).
Plaintiff’s allegation that Defendant refused to allow Plaintiff to receive an important
religious feast sets forth a plausible free exercise claim against Defendant. Therefore, this claim
will survive frivolity review. However, the law limits Plaintiff’s available relief on this claim.
As set forth above in Section III, Plaintiff has not alleged any physical injury, and his
relief is limited by 42 U.S.C. § 1997(e). In Williams v. Brown, 347 F. App’x 429, 436 (11th
Cir. 2009), the Eleventh Circuit stated that, “compensatory damages under § 1983 may be
awarded only based on actual injuries caused by the defendant and cannot be presumed or based
on the abstract value of the constitutional rights that the defendant violated. Pursuant to 42
U.S.C. § 1997e(e), in order to recover for mental or emotional injury suffered while in custody, a

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prisoner bringing a § 1983 action must demonstrate more than a de minim[i]s physical injury.”
Id. (internal citations omitted) (alterations in original). Consequently, a prisoner that has not
suffered any physical injury cannot recover compensatory or punitive damages. Al-Amin v.
Smith, 637 F.3d 1192, 1199 (11th Cir. 2011) (“In sum, our published precedents have affirmed
district court dismissals of punitive damage claims under the PLRA because the plaintiffs failed
to meet § 1997e(e)’s physical injury requirement.”); Smith, 502 F.3d at 1271 (“Plaintiff seeks
nominal, compensatory, and punitive damages. It is clear from our case law, however, that the
latter two types of damages are precluded under the PLRA.”).
However, the Eleventh Circuit has also stated that “[n]ominal damages are appropriate if
a plaintiff establishes a violation of a fundamental constitutional right, even if he cannot prove
actual injury sufficient to entitle him to compensatory damages.” Williams, 347 F. App’x at 436
(quoting Hughes v. Lott, 350 F.3d 1157, 1162 (11th Cir. 2003)). “Thus, a prayer for nominal
damages is not precluded by § 1997e(e).” Id. (quoting Smith, 502 F.3d at 1271).
In this case, Plaintiff has not alleged that he has suffered any physical injury due to
Defendants’ alleged constitutional violations. Accordingly, the Court should DISMISS his
Section 1983 claims for compensatory and punitive damages pursuant to 42 U.S.C. § 1997e(e).
However, Section 1997e(e) does not bar Plaintiff’s Section 1983 claims for nominal damages or
injunctive relief, and those claims will proceed.
V.

Request for Preliminary Injunction
Plaintiff has sought preliminary injunctive relief from the Court. (Doc. 1, p. 5.) To

receive a preliminary injunction, the movant must show: (1) a substantial likelihood of ultimate
success on the merits; (2) an injunction or protective order is necessary to prevent irreparable

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injury; (3) the threatened injury outweighs the harm the injunction or protective order would
inflict on the non-movant; and (4) the injunction or protective order would not be adverse to the
public interest. Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1225–26 (11th Cir. 2005).
In this Circuit, an “injunction is an extraordinary and drastic remedy not to be granted unless the
movant clearly established the ‘burden of persuasion’ as to the four requisites.” Horton v. City
of Augustine, Fla., 272 F.3d 1318, 1326 (11th Cir. 2001). 2
Plaintiff fails to establish that he is entitled to a preliminary injunction at this stage.
Specifically, Plaintiff has not demonstrated a substantial likelihood of success on the merits of
his claims. Accordingly, the Court should DENY his request for a preliminary injunction. This
is not to say that Plaintiff may not obtain injunctive relief at some other stage of this proceeding.
However, at this time, the Court should not provide such an extraordinary remedy.

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Additionally, in reviewing Plaintiff’s Motion, the Court is cognizant that courts are properly reluctant to
interfere with prison administration and discipline, absent a clear abuse of discretion. See Procunier v.
Martinez, 416 U.S. 396, 404–05 (1974) (“Traditionally, federal courts have adopted a broad hands-off
attitude toward problems of prison administration [because] . . . courts are ill equipped to deal with the
increasingly urgent problems of prison administration and reform.”), overruled on other grounds by
Thornburgh v. Abbott, 490 U.S. 401 (1989). In such cases, “[d]eference to prison authorities is especially
appropriate.” Newman v. State of Ala., 683 F.2d 1312, 1320–21 (11th Cir. 1982) (reversing district
court’s injunction requiring release of prisoners on probation because it “involved the court in the
operation of the State’s system of criminal justice to a greater extent than necessary” and less intrusive
equitable remedy was available); see also Thornburgh, 490 U.S. at 407–08 (“Acknowledging the
expertise of these officials and that the judiciary is ‘ill equipped’ to deal with the difficult and delicate
problems of prison management, this Court has afforded considerable deference to the determinations of
prison administrators who, in the interest of security, regulate the relations between prisoners and the
outside world.”); Bell v. Wolfish, 441 U.S. 520, 547 (1979) (acknowledging that courts have “accorded
wide-ranging deference [to prison administrators] in adoption and execution of policies and practices that
in their judgment are needed to preserve internal order and discipline and to maintain institutional
security.”); Jones v. N. Carolina Prisoners’ Labor Union, 433 U.S. 119, 129 (1977) (“Prison officials
must be free to take appropriate action to ensure the safety of inmates and corrections personnel and to
prevent escape or unauthorized entry.”); Bradley v. Hart, No. CV513-127, 2015 WL 1032926, at *10
(S.D. Ga. Mar. 9, 2015) (“It does not appear to be appropriate for this Court to order that prison officials
remove entries from Plaintiff’s file, which may or may not be accurate.”).

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CONCLUSION
For all of the above reasons, I RECOMMEND that the Court DISMISS Plaintiff’s
claims for monetary relief against Defendant in his official capacity, his claims for monetary
relief under the RLUIPA, and his claims for compensatory and punitive damages under
Section 1983. Additionally, I RECOMMEND that the Court DENY Plaintiff’s request for a
preliminary injunction.
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the Complaint must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.
Upon receipt of Objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final

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judgment entered by or at the direction of a District Judge. The Clerk of Court is DIRECTED
to serve a copy of this Report and Recommendation upon the Plaintiff.
REMAINING CLAIMS
Plaintiff’s allegations in his Complaint arguably state colorable claims for injunctive
relief under the RLUIPA and for injunctive relief and nominal damages under 42 U.S.C. § 1983.
Consequently, the United States Marshal shall serve a copy of Plaintiff’s Complaint and a copy
of this Order upon Defendant without prepayment of cost. The Court also provides the following
instructions to the parties that will apply to the remainder of this action and which the Court
urges the parties to read and follow.
INSTRUCTIONS TO DEFENDANT
Because Plaintiff is proceeding in forma pauperis, the undersigned directs that service 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
Defendant 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. Fed. R. Civ. P. 30(a). Defendant is further

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advised that the Court’s standard 140 day discovery period will commence upon the filing of the
last answer. Local Rule 26.1. Defendant shall ensure that all discovery, including the Plaintiff’s
deposition and any other depositions in the case, is completed within that discovery period.
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 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).
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.
Plaintiff’s failure to notify the Court of a change in his address may result in dismissal of this
case.

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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. The discovery period in this case will expire 140 days
after the filing of the last answer. Local Rule 26.1. Plaintiff does not need the permission of the
Court to begin discovery, and Plaintiff should begin discovery promptly and complete it within
this time period. Local Rule 26.1. Discovery materials should not be filed routinely with the
Clerk of Court; exceptions include: when the Court directs filing; when a party needs such
materials in connection with a motion or response, and then only to the extent necessary; and
when needed for use at trial. Local Rule 26.4.
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 a Defendant. 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 attorneys 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

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cost of fifty cents ($.50) per page. If Plaintiff seeks copies, he should request them directly
from the Clerk of Court and is advised that the Court will authorize and require the
collection of fees from his prison trust fund account to pay the cost of the copies at the
aforementioned rate of fifty cents ($.50) 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 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

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indicate that there is no opposition to a motion.” Local Rule 7.5. Therefore, if Plaintiff fails to
respond to a motion to dismiss, the Court will assume that he does not oppose the Defendant’s
motion. Plaintiff’s case may be dismissed for lack of prosecution if Plaintiff fails to respond to a
motion to dismiss.
Plaintiff’s 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 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, Plaintiff is advised that he 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, Plaintiff must file counter-affidavits if
he desires to contest the Defendant’s statement of the facts. Should Plaintiff fail to file opposing
affidavits setting forth specific facts showing that there is a genuine dispute for trial, any factual
assertions made in Defendant’s affidavits will be accepted as true and summary judgment may
be entered against the Plaintiff pursuant to Federal Rule of Civil Procedure 56.
SO ORDERED and REPORTED and RECOMMENDED, this 12th day of January,
2016.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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