Myton v. Deal et al
ORDER Directing USMS Service of Process. A copy of the 1 Complaint, undersigned's 12 REPORT AND RECOMMENDATIONS, and a copy of this Order be served upon Defendants Terry Moore and Michael Goette. Signed by Magistrate Judge Benjamin W. Cheesbro on 11/18/2020. (ca) (Additional attachment(s) added on 11/18/2020: # 1 Prepared 285 forms) (ca).
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
John E. Triplett, Acting Clerk
United States District Court
By CAsbell at 4:09 pm, Nov 18, 2020
ABRAHAM JUDAH MYTON,
CIVIL ACTION NO.: 6:19-cv-32
JAMES DEAL, et al.,
This matter is before the Court frivolity screening under 28 U.S.C. § 1915A and
Plaintiff’s Motion to move his case forward, doc. 11.
Motion to be Placed on Next Court Calendar
Plaintiff filed a Motion asking the Court to move his case forward and “place me on the
next court calendar.” Doc. 11 at 1. The Court does not maintain a calendar as Plaintiff describes
in this Motion. Id. For this reason, the Court DENIES Plaintiff’s Motion.
Service of Plaintiff’s Complaint
Plaintiff filed this action, asserting claims under 42 U.S.C. § 1983. Doc. 1. This Court
has conducted its frivolity screening under 28 U.S.C. § 1915A and has concluded the following
portions of Plaintiff’s Complaint survive frivolity review: deliberate indifference to medical
treatment and safety claims against Defendants Terry Moye and Michael Goette. Therefore, a
copy of Plaintiff’s Complaint, doc. 1, a copy of this Order, and a copy of the undersigned’s
Report recommending dismissal of some of Plaintiff’s claims (which is being issued
contemporaneously with this Order) shall be served upon Defendants Terry Moye and Michael
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Goette by the United States Marshal without prepayment of cost. The Court DIRECTS the
Clerk of Court to serve a copy of this Report upon Plaintiff. The Court also provides the below
instructions to the parties that will apply to the remainder of this action.
INSTRUCTIONS TO ALL DEFENDANTS IN THIS ACTION
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 a defendant by first-class mail and request that the defendant
waive formal service of summons. Fed. R. Civ. P. 4(d); Local R. 4.5. A defendant has a duty to
avoid unnecessary costs of serving the summons, and any 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). Generally, a defendant who timely returns
the waiver is not required to answer the complaint until 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 any Defendant in this action is granted leave of court
to take the deposition of Plaintiff upon oral examination. Fed. R. Civ. P. 30(a)(2). Defendants
are further advised the Court’s standard 140-day discovery period will commence upon the filing
of the last answer. Local R. 26.1. Defendants shall ensure all discovery, including Plaintiff’s
deposition and any other depositions in the case, is completed within that discovery period.
If a Defendant takes the deposition of any other person, Defendants are ordered to
comply with the requirements of Federal Rule of Civil Procedure 30. As Plaintiff will not likely
attend such a deposition, the Defendant taking the deposition must notify Plaintiff of the
deposition and advise him that he may serve on that Defendant written questions Plaintiff wishes
to propound to the witness, if any. Defendants shall present such questions to the witness in
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order and word-for-word during the deposition. Fed. R. Civ. P. 30(c). Plaintiff must submit the
questions in a sealed envelope within 10 days of the notice of deposition.
INSTRUCTIONS TO PLAINTIFF
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.
Plaintiff’s failure to notify the Court of a change in his address may result in dismissal of this
IT IS FURTHER ORDERED that Plaintiff shall serve a copy of every pleading or other
document submitted for consideration by the Court on each Defendant (or, if appearance has
been entered by counsel, the Defendant’s attorney). 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 each Defendant or the Defendant’s 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 has the responsibility for pursuing this case. For example, if Plaintiff wishes to
obtain facts and information about the case from a Defendant, Plaintiff must initiate discovery.
See generally Fed. R. Civ. P. 26 to Fed. R. Civ. P. 37. 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. Id. 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.
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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 25
questions. Fed. R. Civ. P. 33(a). If Plaintiff wishes to propound more than 25 interrogatories to
a party, Plaintiff must have permission of the Court. If Plaintiff wishes to file a motion to
compel, pursuant to Federal Rule of Civil Procedure 37, he should first contact the attorney for
Defendants and try to work out the problem; if Plaintiff proceeds with the motion to compel, he
should also file a statement certifying that he has contacted opposing counsel in a good faith
effort to resolve any dispute about discovery. Fed. R. Civ. P. 26(c), 37(a)(2)(A); Local R. 26.5.
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 failure to
prosecute. Fed. R. Civ. P. 41; Local R. 41.1.
It is Plaintiff’s duty to cooperate in any discovery initiated by a Defendant. Upon no less
than five days’ notice of the scheduled deposition date, Plaintiff must appear and permit his
deposition to be taken and must answer, under oath or solemn affirmation, any question which
seeks information relevant to the subject matter of the pending action.
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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
A Defendant may choose to ask the Court to dismiss this action by filing a motion to
dismiss, a motion for summary judgment, or both. Under this Court’s Local Rules, a party
opposing a motion to dismiss shall file and serve his response to the motion within 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 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 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 a
Defendant’s statement of material facts will be deemed admitted unless specifically controverted
by an opposition statement. If a Defendant files a motion for summary judgment, Plaintiff will
have the burden of establishing the existence of a genuine dispute as to any material fact in this
case. That burden cannot be met by reliance on the conclusory allegations contained within the
complaint. If a Defendant’s motion for summary judgment is supported by affidavit, Plaintiff
must file counter-affidavits if he wants to contest Defendant’s statement of the facts. If Plaintiff
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fails to file opposing affidavits setting forth specific facts showing that there is a genuine dispute
for trial, any factual assertions made in the Defendant’s affidavits will be accepted as true and
summary judgment may be entered against Plaintiff pursuant to Federal Rule of Civil Procedure
SO ORDERED, this 18th day of November, 2020.
BENJAMIN W. CHEESBRO
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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