Garrett v. Meeks

Filing 8

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Plaintiff's official capacity damages claim against Defendant re 1 Complaint. Plaintiff plausibly states a colorable Eighth Amendment excessive force claims against Def endant. 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. (Objections to R&R due by 6/4/2018). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. The Court DIRECTS the U.S. Marshal to serve Defendant with a copy of this Order and Plaintiff's Complaint. Signed by Magistrate Judge R. Stan Baker on 5/21/2018. (ca) (Additional attachment(s) added on 5/21/2018: # 1 Prepared 285 Form) (ca).

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

CARL GARRETT,
Plaintiff,

CIVIL ACTION NO.: 6:17-cv-120

v.
JOHNATHAN MEEKS,
Defendant.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, an inmate at Rogers State Prison in Reidsville, Georgia, filed a cause of action
pursuant to 42 U.S.C. § 1983. (Doc. 1.) Plaintiff also filed and was granted a Motion for Leave
to Proceed in Forma Pauperis. (Docs. 2, 4.) For the reasons set forth below, I find Plaintiff
plausibly states a colorable Eighth Amendment excessive force claim against Defendant.
However, I RECOMMEND that the Court DISMISS Plaintiff’s official capacity damages claim
against Defendant. The Court DIRECTS the United States Marshal to serve Defendant with a
copy of this Order and Plaintiff’s Complaint.
PLAINTIFF’S ALLEGATIONS 1
On September 23, 2017, Defendant used excessive force against Plaintiff. (Doc. 1, p. 5.)
Plaintiff states that as he was attempting to go to breakfast, Defendant came from behind and
punched Plaintiff in the head and face. Plaintiff contends Defendant assaulted him because, just
moments before, they had been arguing about Plaintiff’s right to go eat breakfast, which
Defendant allegedly was trying to deny. Plaintiff asserts that several witnesses, who are named
1

The below recited facts are taken from Plaintiff’s Complaint and are accepted as true, as they must be at
this stage.

in his Complaint, observed this attacked and gave written statements. 2 (Id.) Plaintiff states that
he has suffered physical and emotional harm due to Defendant’s attack.

As relief for

Defendant’s “excessive use of force,” Plaintiff seeks compensatory and punitive damages as well
as injunctive relief. (Id. at p. 6.)
STANDARD OF REVIEW
Plaintiff brings this action in forma pauperis.

(Docs. 2, 4.)

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
2

Plaintiff notes that he did not file a grievance about Defendant’s alleged attack because the grievance
counselor told him he was unable to since his issue dealt with a disciplinary report. (Doc. 1, p. 4.)

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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)).
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 . . . .”) (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
I.

Exhaustion
A.

Exhaustion at Frivolity Review Stage

Failure to exhaust administrative remedies is an affirmative defense, and inmates are not
required to specially plead or demonstrate exhaustion in their complaint. Jones v. Bock, 549
U.S. 199, 216 (2007). However, the normal pleading rules still apply, and when an affirmative
defense appears on the face of a complaint making it clear that a prisoner cannot state a claim for
relief, dismissal is warranted under the screening process set out in 28 U.S.C. § 1915A. Id. at
214–15.

“Even though a failure-to-exhaust defense is non-jurisdictional, it is like” a

jurisdictional defense because such a determination “ordinarily does not deal with the merits” of
a particular cause of action. Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir. 2008) (internal
punctuation and citation omitted). Thus, when a prisoner admits in his complaint that he has not
exhausted the grievance process, the Court should dismiss the lawsuit during the frivolity
screening. See Okpala v. Drew, 248 F. App’x 72, 73 (11th Cir. 2007) (per curiam); Cole v. Ellis,
No. 5:10-CV-00316-RS-GRJ, 2010 WL 5564632, at *3 (N.D. Fla. Dec. 28, 2010); Rashid v.
Liberty Cty. Jail, CV410-092, 2010 WL 3239241, at *1 n.1 (S.D. Ga. May 3, 2010) (“Nothing in
Jones . . . forbids the Court from dismissing a complaint pursuant to § 1997e(a) if it is clear from
the face.”)
B.

Legal Requirements for Exhaustion

Where Congress explicitly mandates, prisoners seeking relief for alleged constitutional
violations must first exhaust available inmate grievance procedures before filing suit in federal
court. See Porter v. Nussle, 534 U.S. 516, 524 (2002). Section 1997e(a) of Title 42 of the
United States Code states, “No action shall be brought with respect to prison conditions under

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section 1983 of this title, or any other Federal law . . . until such administrative remedies as are
available are exhausted.” In Porter, the United States Supreme Court held that exhaustion of
available administrative remedies is mandatory. 534 U.S. at 523; see also O’Brien v. United
States, 137 F. App’x 295, 301–02 (11th Cir. 2005) (per curiam) (finding lack of exhaustion
where prisoner “prematurely filed his civil complaint . . . and . . . ‘failed to heed that clear
statutory command’ requiring that his administrative remedies be exhausted before bringing
suit”). However, prisoners “need not exhaust unavailable” administrative remedies. Ross v.
Blake, 578 U.S. ___, ___, 136 S. Ct. 1850, 1858 (2016).
The requirement that the exhaustion of remedies occur “first in an agency setting allows
‘the agency [to] develop the necessary factual background upon which decisions should be
based’ and giv[es] ‘the agency a chance to discover and correct its own errors.’” Green v. Sec’y
for Dep’t of Corr., 212 F. App’x 869, 871 (11th Cir. 2006) (per curiam) (quoting Alexander v.
Hawk, 159 F.3d 1321, 1327 (11th Cir. 1998) (first alteration in original)).

Furthermore,

requiring exhaustion in the prison setting “eliminate[s] unwarranted federal-court interference
with the administration of prisons” and allows “corrections officials time and opportunity to
address complaints internally before allowing the initiation of a federal case.” Woodford v. Ngo,
548 U.S. 81, 93 (2006).
The Supreme Court has noted exhaustion must be “proper.”

Id. at 92.

“Proper

exhaustion demands compliance with an agency’s deadlines and other critical procedural rules
because no adjudicative system can function effectively without imposing some orderly structure
on the course of its proceedings.” Id. at 90–91. In other words, an institution’s requirements
define what is considered exhaustion. Jones, 549 U.S. at 218.

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Thus, under the law, prisoners must do more than simply initiate grievances; they must
also appeal any denial of relief through all levels of review that comprise the administrative
grievance process. Bryant, 530 F.3d at1378 (“To exhaust administrative remedies in accordance
with the PLRA [Prison Litigation Reform Act], prisoners must ‘properly take each step within
the administrative process.’”) (quoting Johnson v. Meadows, 418 F.3d 1152, 1157 (11th Cir.
2005)); Sewell v. Ramsey, No. CV406-159, 2007 WL 201269 (S.D. Ga. Jan. 27, 2007) (finding
that a plaintiff who is still awaiting a response from the warden regarding his grievance is still in
the process of exhausting his administrative remedies).
Furthermore, an inmate who files an untimely grievance or simply spurns the
administrative process until it is no longer available fails to satisfy the exhaustion requirement of
the PLRA. Johnson, 418 F.3d at 1157–59; Higginbottom v. Carter, 223 F.3d 1259, 1261 (11th
Cir. 2000) (inmate’s belief that administrative procedures are futile or needless does not excuse
the exhaustion requirement). Additionally, “[t]he only facts pertinent to determining whether a
prisoner has satisfied the PLRA’s exhaustion requirement are those that existed when he filed his
original complaint.” Smith v. Terry, 491 F. App’x 81, 83 (11th Cir. 2012) (per curiam) (citing
Harris v. Garner, 216 F.3d 970, 981 (11th Cir. 2000) (en banc)).
“However, ‘while [Section] 1997e(a) requires that a prisoner provide as much relevant
information as he reasonably can in the administrative grievance process, it does not require
more.’” Id. (quoting Brown v. Sikes, 212 F.3d 1205, 1207 (11th Cir. 2000)). The purpose of
Section 1997e(a) is not that “fact-intensive litigation” result over whether every fact relevant to
the cause of action was included in the grievance. Hooks v. Rich, CV605-65, 2006 WL 565909,
at *5 (S.D. Ga. Mar. 7, 2006) (internal citation omitted). “‘As long as the basic purposes of
exhaustion are fulfilled, there does not appear to be any reason to require a prisoner plaintiff to

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present fully developed legal and factual claims at the administrative level.’” Id. (quoting Irvin
v. Zamora, 161 F. Supp. 2d 1125, 1135 (S.D. Cal. 2001)). Rather, Section 1997e(a) is intended
to force inmates to give state prison authorities a chance to correct constitutional violations in
their prisons before resorting to federal suit and to prevent patently frivolous lawsuits. Id.
C.

Assessment of Plaintiff’s Exhaustion

Plaintiff admits on the face of his Complaint that he did not avail himself of the grievance
procedure at Rogers State Prison. However, Plaintiff also states that he was informed by the
grievance counselor he could not grieve this particular issue because it was a disciplinary report.
(Doc. 1, p. 4.) This claim implicates the “availability” of Rogers State Prison’s administrative
remedies. In Ross v. Blake, the Supreme Court recognized “three kinds of circumstances in
which an administrative remedy, although officially on the books, is not capable of use to obtain
relief.” 578 U.S. at ___, 136 S. Ct. at 1859.
First, the Court stated that, in some instances, the administrative procedure “operates as a
simple dead end—with officers unable or consistently unwilling to provide any relief to
aggrieved inmates.” Id. Thus, if the administrative procedure lacks authority or if the officials
with apparent authority “decline ever to exercise it,” the inmate has no obligation to exhaust the
remedy. Id. Second, when administrative remedies are so confusing that they are “essentially
‘unknowable,’” exhaustion is not required. Id. (citing Goebert v. Lee County, 510 F.3d 1312,
1323 (11th Cir. 2007); Turner v. Burnside, 541 F.3d 1077, 1084 (11th Cir. 2008)). Lastly,
exhaustion is not required “when prison administrators thwart inmates from taking advantage of
a grievance process through machination, misrepresentation, or intimidation.” Id. at ___, 136 S.
Ct. at 1860. However, the Supreme Court has noted that, “[g]iven prisons’ own incentives to

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maintain functioning remedial processes, we expect that these circumstances will not often
arise.” Id. at ___, 136 S. Ct. at 1859.
In effect, Plaintiff argues that the administrative remedies offered by Rogers State
Prison’s grievance procedure were unavailable to him. Taking Plaintiff’s allegations as true, as it
must at this stage, the Court finds Plaintiff did not have to exhaust the administrative remedies at
Rogers State Prison because they were not made available to him by prison administrators.
Whether through the grievance counselor’s “misrepresentation” or through the grievance office
“disclaim[ing] the capacity to consider” Plaintiff’s particular grievance, Plaintiff has plausibly
stated colorable grounds under Ross to be excused from the PLRA’s exhaustion requirement. Id.
at ___, 136 S. Ct. at 1859–60. This frivolity review determination, however, does not preclude
Defendant from arguing, after service, that administrative remedies were made available to
Plaintiff and that Plaintiff failed to exhaust them.
II.

Dismissal of Official Capacity Damages Claim
Plaintiff seeks compensatory and punitive damages against Defendant in his official

capacity. (Doc. 1, p. 6.) Plaintiff, however, 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.

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Accordingly, the Eleventh Amendment immunizes these actors from suit in their official
capacities. See Free v. Granger, 887 F.2d 1552, 1557 (11th Cir. 1989). Without a waiver of that
immunity, which is absent in this case, Plaintiff cannot sustain any constitutional claims against
Defendants in their official capacities for monetary relief. Thus, the Court should DISMISS this
claim. 3
III.

Excessive Force Claim
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. Mashburn, 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.” Farmer v. 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 used for the malicious and sadistic purpose of causing
harm or whether the force was applied in good faith, courts consider the following factors: (1)
the need for the exercise of force, (2) the relationship between the need for force and the force
applied, (3) the extent of injury that the inmate suffered, (4) the extent of the threat to the safety
of staff and other inmates, (5) and any efforts taken to temper the severity of a forceful response.
Skelly v. Okaloosa Cty. Bd. of Cty. Comm’rs, 456 F. App’x 845, 848 (11th Cir. 2012) (per
curiam) (quoting Fennell v. Gilstrap, 559 F.3d 1212, 1217 (11th Cir. 2009)).

3

However, to the extent Plaintiff successfully states a constitutional claim, he may seek injunctive relief against
Defendant in his official capacity. Ex parte Young, 209 U.S. 123, 148–150 (1908).

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Plaintiff contends that Defendant used excessive force by physically attacking Plaintiff
after a disagreement about Plaintiff going to breakfast. Plaintiff asserts Defendant attacked him
from behind with blows to Plaintiff’s face and head. (Doc. 1, p. 5.) On review of Plaintiff’s
Complaint, at this early stage of the litigation, the Court finds that his allegations could state a
claim for excessive force under the Skelly factors. Accordingly, Plaintiff’s excessive force claim
survives frivolity review and shall proceed against Defendant in his individual capacity.
CONCLUSION
For the reasons set forth above, I find that Plaintiff plausibly states a colorable Eighth
Amendment excessive force claim against Defendant. However, I RECOMMEND that the
Court DISMISS Plaintiff’s official capacity damages claim against Defendant.

The Court

DIRECTS the United States Marshal to serve Defendant with a copy of this Order and
Plaintiff’s Complaint.
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.
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

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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
judgment entered by or at the direction of a District Judge. The Court DIRECTS the Clerk of
Court to serve a copy of this Report and Recommendation upon the parties.
REMAINING CLAIMS AND DEFENDANTS
Plaintiff’s allegations in his Complaint arguably state colorable claims for relief against
Defendants Toole and Allen under 42 U.S.C. § 1983. Consequently, a copy of Plaintiff’s
Complaint and a copy of this Order shall be served upon these Defendants by the United States
Marshal 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 DEFENDANTS
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 R. 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).

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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 are
further advised that the Court’s standard 140 day discovery period will commence upon the
filing of the last answer. Local Rule 26.1. Defendants 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 Defendants take the deposition of any other person, Defendants are
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, 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 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).
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 R. 11.1.

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Plaintiff’s 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 Defendants, 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 R. 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 R. 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 R. 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 Defendants. 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 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 R. 26.7.

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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 R. 41.1.
It is 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 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.

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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 R. 7.5. Therefore, if Plaintiff fails to
respond to a motion to dismiss, the Court will assume that he does not oppose the Defendants’
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 R. 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, 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 Defendants’
motion for summary judgment be supported by affidavit, Plaintiff must file counter-affidavits if
he desires to contest the Defendants’ 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 Defendants’ affidavits will be accepted as true and summary judgment may

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be entered against the Plaintiff pursuant to Federal Rule of Civil Procedure 56.
SO ORDERED and REPORTED and RECOMMENDED, this 21st day of May, 2018.

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

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