Simpson v. Allen et al

Filing 19

ORDER denying 15 Motion to Consolidate Cases; adopting 16 Report and Recommendations. All claims against defendants Georgia Department of Corrections, Georgia State Prison, Warden Stanley Williams, and Commissioner Homer Bryson are dismissed. This case shall proceed against Defendant Allen. Signed by Judge J. Randal Hall on 2/8/16. (cmr) (Additional attachment(s) added on 2/8/2016: # 1 USM 285) (cmr).

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

JACOB SIMPSON,
Plaintiff,

CIVIL ACTION NO.: 6:15-cv-l 18

v.

OFFICER ALLEN; WARDEN STANLEY
WILLIAMS; COMMISSIONER HOMER
BRYSON; GEORGIA DEPARTMENT OF
CORRECTIONS; and GEORGIA STATE
PRISON,
Defendants.

ORDER

Before the Court is the Report and Recommendation of the Magistrate Judge, (doc. 16),

to which Plaintiff has filed Objections, (doc. 18). For the reasons set forth below, the Plaintiffs

Objections are SUSTAINED. Plaintiffs excessive force claims will proceed against Defendant
Allen in his individual capacity. However, the Court DISMISSES all claims against the Georgia

Department of Corrections, Georgia State Prison, Warden Stanley Williams, and Commissioner
Homer Bryson, as well as all claims against Defendants in their official capacities. The Court
also DISMISSES WITHOUT PREJUDICE Plaintiffs claims unrelated to Defendant Allen's

use of force.

Additionally, the Court DENIES Plaintiffs Motion to Consolidate Cases,

(doc. 15).
BACKGROUND

Plaintiff, who is currently housed at Georgia State Prison ("GSP") in Reidsville, Georgia,

filed this action, pursuant to 42 U.S.C. § 1983, on October 7, 2015. (Doc. 1.) Plaintiff contends

that Defendant Allen, a correctional officer at GSP, slammed Plaintiff to the ground on July 30,
2015. (Id at p. 5.) According to Plaintiff, this use of force was unprovoked and while Plaintiffs
hands were cuffed behind his back. In addition to his allegations regarding this use of force,
Plaintiffs allegations challenge a litany of the conditions of his confinement at GSP. (Id at

pp. 5-8.) Plaintiff states that he has not received meals and showers on some dates in June, July,

and September 2015. Id He further alleges that another inmate has thrown feces at his cell
door. Id He also took issue with the food he has been served at GSP. Id at p. 6. Plaintiff has

filed several pleadings, including an Amended Complaint, in which he has expounded upon
these allegations. (Docs. 8,13,14.)

On January 15, 2016, the Magistrate Judge conducted a frivolity review of Plaintiffs

Complaint, as amended, pursuant to 28 U.S.C. § 1915A. (Doc. 16.) The Magistrate Judge
concluded that Plaintiffs Complaint was due to be dismissed because Plaintiff failed to exhaust

his administrative remedies. (Id at pp. 4-9.) The Magistrate Judge noted that Plaintiff asserted

in his Complaint that the prison's grievance counselor had only received his grievance days
before Plaintiff filed this action. Id Further, Plaintiff admitted that the grievance was still

pending. Id In addition, the Magistrate Judge noted that Plaintiffs Amended Complaint and
Motion to Consolidate included a grievance and a receipt indicating that Plaintiff did not

commence the grievance process until November 2015. (Id at pp. 8-9.) Accordingly, the

Magistrate Judge determined that Plaintiffs own pleadings evidenced that he did not properly
exhaust the Georgia Department of Corrections' grievance process before filing this suit. (Id at
F.9.)

In his Objections to the Magistrate Judge's Report and Recommendation, Plaintiff
asserts, for the first time, that he filed a grievance on August 1, 2015, the day after Defendant

Allen slammed him to the ground. (Doc. 18, p. 1.) Plaintiff alleges that the dorm counselor who
was responsible for signing the grievance and submitting it to the grievance counselor never
showed up to work until sometime in September. Id Plaintiff contends that the dorm counselor
then put the grievance into the system, and Plaintiff never received a response. Id Plaintiff
further contends that he wrote the Warden and the Commissioner of the Georgia Department of
Corrections about his grievance but received no response. Id.
DISCUSSION

I.

Plaintiffs Objections to the Magistrate Judge's Report and Recommendation

As the Magistrate Judge explained, failure to exhaust administrative remedies is an
affirmative defense, and inmates are not required to specially plead or demonstrate exhaustion in

their complaints. Jones v. Bock, 549 U.S. 199, 218 (2007). Accordingly, at this early stage, the

Court can only dismiss Plaintiffs claims for failure to exhaust if it is clear from the face of his

pleadings that he did not exhaust all administrative remedies available to him. See Okpala v.
Drew, 248 F. App'x 72 (11th Cir. 2007); Rashid v. Liberty Ctv Jail CV410-092, 2010 WL

3239241 at * 1 n.l (S.D. Ga. May 3, 2010).. Given Plaintiffs recent representations in his

Objections, the Court cannot conclusively determine that Plaintiff did not exhaust his
administrative remedies as to his excessive force claims against Defendant Allen. Plaintiffs

newly-asserted allegations regarding his grievance efforts appear specious. However, at the

frivolity review stage, the Court does not test the credibility of Plaintiffsexhaustion allegations.1
1 However, should Defendant Allen file a Motion challenging Plaintiffs exhaustion efforts, Plaintiffs
allegations will net be given such deference. Father, under Turner v. Burnside, 541 F.3d 1079 (1 lth Cir.
2008), the Eleventh Circuit set forth a "two-stef process" that lower courts must employ whe^i examining
a defense motion based on exhaustion of admin strative remedies. First, the court is to take the plaintiffs

version ofthe facts regarding exhaustion as true. Id.-at 1082. Tf, even under the plaintiffs version cf the

facts, the plaintiff has not exhausted, the .complaint must be dismissec:. Id However, if tie parties'
conflicting facts leave a dispute as to whether plaintiff has exhausted, the court need not accept ail of
plaintiffs facts as true. Id Rather, "the court then proceeds to make specific findings in order to resolve

Accordingly, the Court SUSTAINS Plaintiffs Objections to the Magistrate Judge's Report and
Recommendation and will not dismiss Plaintiffs Complaint for failure to exhaust at this time.
II.

Screening of Plaintiffs Claims

Because Plaintiffs Objections prevent his claims from being dismissed for failure to
exhaust his administrative remedies, the Court must conduct an initial screening of the substance
of his claims. 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, 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).
A.

Standard of Review

When reviewing Plaintiffs Complaint for frivolity, 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 reliefmust contain [among other things] ... a short andplain
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 Bilalv. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001)).

Whether a complaint fails to state a claim under Section 1915A or 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. Famdle, 393 F. App'x 675, 678 (11th

the disputed factual issues[.]" Id "Once the court makes findings on the disputed issues offact, itthen
decides whether under those findings the prisoner has exhausted his available administrative remedies."
Id. at 1083.

Cir. 2010). Under that standard, this Court must determine whether the complaint contains
"sufficient factual matter, accepted as true, to cstate a claim to relief that is plausible on its
face.'" Ashcroft v. Iqbal 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twomblv, 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. Twomblv, 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, Plaintiffs 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.").

B.

Plaintiffs Claims Against the Georgia Department of Corrections

Plaintiff names the Georgia Department of Corrections as a Defendant. (Doc. 1, p. 1.)

However, "[a] state and its agencies (such as the Georgia Department of Corrections) are not

'persons' who may be sued under § 1983." Darrough v. Allen, No. l:13-CV-57 WLS, 2013 WL
5902792, at *3 (M.D. Ga. Oct. 8, 2013); see also Williams v. Ga. Dep't of Corr., No. CV612-

:.

i-ji'

050, 2012 WL 3911232, at *1 (S.D. Ga. Aug. 6, 2012), report and recommendation adopted,

No. CV612-050, 2012 WL 3910834 (S.D. Ga. Sept. 6, 2012) ("Because the Georgia Department
of Corrections is a state agency, it is not a 'person' subject to suit under § 1983.").

Furthermore, 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). Here, the State of Georgia

would be the real party in interest in a suit against the Georgia Department of Corrections.

Accordingly, the Eleventh Amendment immunizes the Department of Corrections from suit. See
Free v. Granger, 887 F.2d 1552,1557 (11th Cir. 1989).
For all of these reasons, the Court DISMISSES all of Plaintiffs claims against the

Georgia Department of Corrections.

C.

Plaintiffs Claims Against Defendants Allen, Williams, and Bryson in Their
Official Capacities

Plaintiff cannot sustain a Section 1983 claim for monetary damages against Defendants

Allen, Williams, and Bryson in their official capacities. As laid out in Subsection B, the
Eleventh Amendment and traditional principles of state sovereignty immunize states from suit in
federal court. Alden, 527 U.S. at 712-13. Section 1983 does not abrogate that immunity. Will,

491 U.S. at 67. A lawsuit against Defendants Allen, Williams, and Bryson in their official

capacities as employees of the Georgia Department of Corrections is "no different from a suit

against the [s]tate itself." Id. at 71. Accordingly, the Eleventh Amendment immunizes these
Defendants from suit in their official capacities. See Free, 887 F.2d at 1557. Therefore, the

Court DISMISSES Plaintiffs claims against Defendants Allen, Williams, and Bryson in their
official capacities.

D.

Plaintiffs Claims Against GSP

In order to state a claim for relief under Section 1983, Plaintiff must satisfy two elements.
First, he 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 Ctv., 50 F.3d
1579, 1582 (11th Cir. 1995). Second, he must allege that the act or omission was committed by

"a person acting under color of state law." Id While local governments qualify as "persons"

under Section 1983, state agencies and penal institutions are generally not considered legal
entities subject to suit. See Grech v. Clayton Ctv. Ga., 335 F.3d 1326, 1343 (11th Cir. 2003).

Consequently, a prison is not a viable defendant under Section 1983. Mathis v. Ga. State Prison,
No. 6:15-CV-122, 2016 WL 183753, at *2 (S.D. Ga. Jan. 14, 2016) ("A prison, such as Georgia

State Prison, is a building, not a person, and, therefore, is not a viable defendant under Section

1983."); Williams v. Chatham Ctv. Sherriffs Complex, Case No. 4:07-cv-68, 2007 WL 2345243

(S.D. Ga. Aug. 14, 2007) ("The county jail, however, has no independent legal identity and
therefore is not an entity that is subject to suit under Section 1983."). Accordingly, the Court
DISMISSES Plaintiffs claims against GSP.
E.

Plaintiffs Claims for Excessive Use of Force

The Eighth Amendment's proscription against cruel and unusual punishment governs the

amount of force that prison officials are entitled to use against inmates. Campbell v. Sikes, 169
F.3d 1353, 1374 (11th Cir. 1999). An excessive force claim has two requisite parts: an objective

and a subjective component. Sims v. Mashbum, 25 F.3d 980, 983 (11th Cir. 1994). In order to

satisfy the objective component, the inmate must show that the prison official's conduct was

"sufficiently serious." Farmery. Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v. Seiter,
501 U.S. 294, 298 (1991)). The subjective component requires a showing that the force used

was "maliciously and sadistically for the very purpose of causing harm" rather than "a good faith

effort to maintain or restore discipline." Whitley v. Albers, 475 U.S. 312, 320-21 (1986). In
order to determine whether the force was u?ed for the malicious and sadistic purpose of causing

harm or whether the force was applied in good faith, courts consider the following factors: the
need for the exercise of force, the relationship between the need for force and the force applied,

the extent of injury that the inmate suffered, the extent of the threat to the safety of staff and
other inmates, and any efforts taken to temper the severity of a forceful response. Skelly v.
Okaloosa Ctv. Bd. of Ctv. Comm'rs, 456 F. App'x 845, 848 (11th Cir. 2012) (quoting Fennell v.
Gilstrap, 559 F.3d 1212, 1217 (11th Cir. 2009)).

Plaintiff has stated a plausible claim that Defendant Allen used excessive force against

him. Plaintiff alleges that Defendant Allen, a correctional officer at GSP, slammed Plaintiff to

the ground on July 30, 2015. (Id. at p. 5.) According to Plaintiff, this use of force was

unprovoked and employed while Plaintiffs hands were cuffed behind his back. I<1 Plaintiff
avers that Defendant Allen's use of force broke his wrist and dislocated his finger. (Doc. 8,

p. 8.) Consequently, Plaintiffs excessive force claims -will proceed against Defendant Allen in
his individual capacity.

However, Plaintiff has not alleged that Defendant Stanley Williams, the Warden of

Georgia State Prison, or Defendant Homer Bryson, the Commissioner of the Georgia Department
of Corrections, were involved in Defendant Allen's July 30, 2015, use of force. It appears that

Plaintiff has named Williams and Bryson as Defendants based on his other claims. These claims
are discussed in Subsection F below.

However, to the extent that Plaintiff seeks to hold

Defendants Williams and Bryson liable for Defendant Allen's use of force, that effort is
unavailing.

Section 1983 liability must be based on something more than a defendant's supervisory
position or a theory of respondeat superior. 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 plaintiffs

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).
Plaintiff has not claimed that Defendants Williams and Bryson had any personal
involvement in Defendant Allen's use of force. Further, he has not alleged that there is any

causal connection between Defendants Williams and Bryson and the use of force. Accordingly,
to the extent that Plaintiff asserted use of force claims against Defendants Williams and Bryson,
those claims are DISMISSED.

F.

Plaintiffs Claims Unrelated to Defendant Allen's Use of Force

Plaintiff asserts several claims regarding the conditions of his confinement at Georgia

State Prison. (Doc. 1, pp. 5-8; Doc. 8, pp. 6-8.) Plaintiff complains that he did not receive
meals and showers on some dates in June, July, and September of 2015. He contends that the
meals he has received are not fit to eat and contain inadequate nutritional value. Id. He also

alleges that the prison is unsanitary, that another inmate has thrown feces at his cell door, and
that he has not received sufficient showers. Id.

Plaintiff cannot pursue unrelated claims in one Section 1983 Complaint.

Smith v.

Owens, No. 14-14039, 2015 WL 4281241, at *4 (11th Cir. July 16, 2015) (upholding this

Court's dismissal of unrelated claims pursuant to Federal Rule of Civil Procedure 20(a), which

will allow the joinder of claims if the claims arise "out of the same transaction, occurrence, or
series of transactions or occurrences" and if "any question of law or fact common to all
defendants will arise in the action.").

Other than the fact that they allegedly arose at GSP, Plaintiffs claims regarding the

general conditions of his confinement have no connection to Plaintiffs use of force claims

against Defendant Allen. These claims involve entirely separate facts and occurrences, as well
as differing legal standards. Accordingly, these unrelated claims cannot be pursued in the same
action. Therefore, the Court DISMISSES WITHOUT PREJUDICE all claims other than
Plaintiffs use of force claims. Should Plaintiff seek to pursue these claims, he must do so
through a separate action.
III.

Plaintiffs Motion to Consolidate

On January 13, 2016, Plaintiff filed a pleading, which the Clerk of Court docketed as a
Motion to Consolidate. (Doc. 15.) In this pleading, Plaintiff refers to another case pending

before this Court, Simpson v. Allen, et al. No. 6:15-cv-47 (S.D. Ga. 2015) ("Simpson II").

However, it does notappear thatPlaintiff requests that the Court consolidate Simpson II with this

case. (Doc. 15.) Rather, he asks that Simpson II be transferred from the Savannah Division of
this Courtto the Brunswick Division. Id Apparently, Plaintiffwas underthe misimpression that
his other case was filed in the Savannah Division. However, Simpson II, like this case, is

10

already properly filed in the Court's Statesboro Division, the Division wherein Georgia State
Prison is located.

Moreover, consolidation of the two cases is not warranted because the

Complaint in Simpson II raises several claims unrelated to Plaintiffs claims against Officer
Allen. For these reasons, Plaintiffs Motion to Consolidate is DENIED.
CONCLUSION

The Court SUSTAINS Plaintiffs Objections to the Magistrate Judge's Report and
Recommendation.

Construed liberally, Plaintiffs Complaint, as amended, states a plausible

claim that Defendant Allen violated Plaintiffs constitutional rights by using excessive force

against Plaintiff on July 30, 2015. This claim will proceed against Defendant Allen in his
individual capacity. However, the Court DISMISSES all other claims. Specifically, the Court
DISMISSES all claims against the Georgia Department of Corrections, Georgia State Prison,

Warden Stanley Williams, and Commissioner Homer Bryson, as well as all claims against

Defendants in their official capacities. The Court DISMISSES WITHOUT PREJUDICE all
claims which are unrelated to Plaintiffs claims that Defendant Allen used excessive force

against Plaintiff on July 30, 2015. Additionally, the Court DENIES Plaintiffs Motion to
Consolidate Cases.

REMAINING CLAIMS AND DEFENDANT

Plaintiffs allegations in his Complaint arguably state colorable claims under 42 U.S.C. §

1983 against Defendant Allen. Consequently, the Court DIRECTS the United States Marshal to
serve Defendant Allen with a copy of Plaintiffs Complaint, (doc. 1), Plaintiffs Amended

Complaint, (doc. 8), and a copy of this Order 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.

11

INSTRUCTIONS TO DEFENDANT

Because Plaintiff is proceeding informa 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 ofthe Plaintiff upon oral examination. Fed. R. Civ. P. 30(a). Defendant is further
advised that the Court's standard 140 day discovery period will commence upon the filing of die
last answer. Local Rule 26.1. Defendant shall ensure that all discovery, including the Plaintiffs

deposition and any other depositions inthe case, is completed within that discovery period.
In the eventthat Defendant takes the deposition of any otherperson, 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).

i:

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.

Plaintiffs failure to notify the Court of a change in his address 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. The discovery period in this case will expire 140 days
after the filing of the last answer. Local Rule 26.1. Plaintiffdoes 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

13

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
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 Plaintiffs 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 cf the

pending action. Failing to answer questions at the deposition or giving evasive or incomplete

14

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 pprty 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 Plaintiff fails to

respond to a motion to dismiss, the Court will assume that he does not oppose the Defendant's
motion. Plaintiffs case may be dismissed for lack of prosecution if Plaintiff fails to respond to a
motion to dismiss.

Plaintiffs 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 cf 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 cf establishing the existence

of a genuine dispute as to any material feet in this case. That burden cannot be carried by
reliance on the conclusory allegations contained within the complaint. Should the Defendant's

15

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, this 8^ day ofFebruary, 2016.

HONORABLE J. RANDAL HALL

\UNITED STATES DISTRICT JUDGE
iUTHERN DISTRICT OF GEORGIA

16