JONES v. RUSSIAN et al, No. 5:2012cv00126 - Document 6 (M.D. Ga. 2012)
Court Description: ORDER granting 2 MOTION for Leave to Proceed in forma pauperis, denying 5 MOTION to Appoint Counsel and ORDER Directing Service against all Defendants. Ordered by US Mag Judge Stephen Hyles on 5/29/12. (AGH)
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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION FRANKLIN JONES, Plaintiff, v. DELTON RUSSIAN, et al., Defendants. ____________________________________ : : : : : : : : CASE NO. 5:12-cv-126-MTT-MSH 42 U.S.C. § 1983 ORDER Plaintiff Franklin Jones, an inmate at Georgia Diagnostic and Classification Prison (the “GDCP”), filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1). Plaintiff’s Complaint is before this court for preliminary review pursuant to 28 U.S.C. § 1915A. Additionally, Plaintiff currently has pending two motions—a motion for leave to proceed without prepayment of the $350.00 filing fee or security therefor pursuant to 28 U.S.C. § 1915(a) (ECF No. 2) and a motion for appointment of counsel (ECF No. 5). Based on Plaintiff’s submissions, the Court finds that Plaintiff is unable to prepay the $350.00 filing fee. Accordingly, the Court GRANTS Plaintiff’s motion to proceed in forma pauperis and waives the initial partial filing fee pursuant to 28 U.S.C. § 1915(b)(1). Plaintiff is nevertheless obligated to pay the full filing fee, as will be instructed later in this Order. The Clerk of Court is directed to send a copy of this Order to the business manager of GDCP. DISCUSSION I. Preliminary Review A. Standard of Review Pursuant to 28 U.S.C. § 1915A(a), a federal court is required to conduct an initial screening of a prisoner complaint “which seeks redress from a governmental entity or officer or employee of a governmental entity.” Section 1915A(b) requires a federal court to dismiss a prisoner complaint that is: (1) “frivolous, malicious, or fails to state a claim upon which relief may be granted”; or (2) “seeks monetary relief from a defendant who is immune from such relief.” A claim is frivolous when it appears from the face of the complaint that the factual allegations are “clearly baseless” or that the legal theories are “indisputably meritless.” Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993). A complaint fails to state a claim when it does not include “enough factual matter (taken as true)” to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests[.]” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (noting that “[f]actual allegations must be enough to raise a right to relief above the speculative level,” and that the complaint “must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action”) (internal quotations and citations omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice”). 2 In making the above determinations, all factual allegations in the complaint must be viewed as true. Brown v. Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004). Moreover, “[p]ro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). In order to state a claim for relief under section 1983, a plaintiff must allege that: (1) an act or omission deprived him of a right, privilege, or immunity secured by the Constitution or a statute of the United States; and (2) the act or omission was committed by a person acting under color of state law. Hale v. Tallapoosa County, 50 F.3d 1579, 1581 (11th Cir. 1995). If a litigant cannot satisfy these requirements, or fails to provide factual allegations in support of his claim or claims, then the complaint is subject to dismissal. See Chappell v. Rich, 340 F.3d 1279, 1282-84 (11th Cir. 2003) (affirming the district court’s dismissal of a section 1983 complaint because the plaintiffs factual allegations were insufficient to support the alleged constitutional violation); see also 28 U.S.C. 1915A(b) (dictating that a complaint, or any portion thereof, that does not pass the standard in section 1915A “shall” be dismissed on preliminary review). B. Review of Plaintiff’s Claims Plaintiff’s claims arise out of an October 25, 2010, incident of alleged excessive force occurring at Macon State Prison, where Plaintiff was then confined. According to Plaintiff, Defendant Cert Officers Delton Russian and Ladarious Thomas, accompanied by Defendant Cert Officers Kerry Bolden, Darron Douglas, and Daren Griffin, and Warden Gregory McLaughlin, handcuffed Plaintiff behind his back and escorted Plaintiff 3 outside F-1 Building. There, Officer Russian allegedly threw Plaintiff to the ground and dropped his knee forcefully into Plaintiff’s face. The Officers then took Plaintiff to the gym, and “pursuant to orders from McLaughlin,” allegedly beat Plaintiff’s face. As a result of the incident, Plaintiff suffered a fractured right orbital floor and received contusions and abrasions necessitating stitches in Plaintiff’s temple and under his left eye. Plaintiff complains that he had to wait a week before he was taken to a hospital and treated for his injuries. Construing the complaint liberally in favor of Plaintiff, the Court determines that Plaintiff has stated colorable claims of excessive force, failure to intervene, and delay in medical treatment against the Defendants. Service shall be made on the Defendants as explained below. II. Motion to Appoint Counsel Plaintiff asks that this Court appoint him counsel (ECF No. 5). Under 28 U.S.C. § 1915(e)(1), the district court “may request an attorney to represent any person unable to afford counsel.” However, there is “no absolute constitutional right to the appointment of counsel.” Poole v. Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987). Appointment of counsel is a privilege that is justified only by exceptional circumstances. Lopez v. Reyes, 692 F.2d 15, 17 (5th Cir. 1982). In deciding whether legal counsel should be provided, the Court should consider, among other factors, the merits of the plaintiff’s claim and the complexity of the issues presented. Holt v. Ford, 682 F.2d 850, 853 (11th Cir. 1989). Plaintiff has set forth the essential factual allegations underlying his claims, and the applicable legal doctrines are readily apparent. Plaintiff therefore has not alleged the 4 exceptional circumstances justifying appointment of counsel under Holt. The Court on its own motion will consider assisting Plaintiff in securing legal counsel if and when it becomes apparent that legal assistance is required in order to avoid prejudice to Plaintiff’s rights. Accordingly, Plaintiff’s motion for appointment of counsel is DENIED at this time. ORDER FOR SERVICE In light of the foregoing, it is hereby ORDERED that service be made on Defendant Cert Officers Delton Russian, Ladarious Thomas, Kerry Bolden, Darron Douglas, and Daren Griffith, and Warden Gregory McLaughlin, and that they file an Answer or such other response as may be appropriate under Rule 12 of the Federal Rules of Civil Procedure, 28 U.S.C. § 1915, and the Prison Litigation Reform Act. Defendants are reminded of the duty to avoid unnecessary service expenses, and of the possible imposition of expenses for failure to waive service pursuant to Federal Rules of Civil Procedure Rule 4(d). DUTY TO ADVISE OF ADDRESS CHANGE During the pendency of this action, all parties shall at all times keep the clerk of this court and all opposing attorneys and/or parties advised of their current address. Failure to promptly advise the Clerk of any change of address may result in the dismissal of a party’s pleadings filed herein. DUTY TO PROSECUTE ACTION Plaintiff is advised that he must diligently prosecute his complaint or face the possibility that it will be dismissed under Rule 41(b) of the Federal Rules of Civil 5 Procedure for failure to prosecute. Defendants are advised that they are expected to diligently defend all allegations made against them and to file timely dispositive motions as hereinafter directed. This matter will be set down for trial when the court determines that discovery has been completed and that all motions have been disposed of or the time for filing dispositive motions has passed. FILING AND SERVICE OF MOTIONS, PLEADINGS, DISCOVERY AND CORRESPONDENCE It is the responsibility of each party to file original motions, pleadings, and correspondence with the Clerk of Court. A party need not serve the opposing party by mail if the opposing party is represented by counsel. In such cases, any motions, pleadings, or correspondence shall be served electronically at the time of filing with the Court. If any party is not represented by counsel, however, it is the responsibility of each opposing party to serve copies of all motions, pleadings, and correspondence upon the unrepresented party and to attach to said original motions, pleadings, and correspondence filed with the Clerk of Court a certificate of service indicating who has been served and where (i.e., at what address), when service was made, and how service was accomplished (i.e., by U.S. Mail, by personal service, etc.). DISCOVERY Plaintiff shall not commence discovery until an answer or dispositive motion has been filed on behalf of the defendants from whom discovery is sought by the plaintiff. The defendants shall not commence discovery until such time as an answer or dispositive motion has been filed. Once an answer or dispositive motion has been filed, the parties 6 are authorized to seek discovery from one another as provided in the FEDERAL RULES OF CIVIL PROCEDURE. The deposition of the plaintiff, a state/county prisoner, may be taken at any time during the time period hereinafter set out provided prior arrangements are made with his custodian. Plaintiff is hereby advised that failure to submit to a deposition may result in the dismissal of his lawsuit under Rule 37 of the Federal Rules of Civil Procedure. Discovery (including depositions and interrogatories) shall be completed within 90 days of the date of filing of an answer or dispositive motion by the defendant (whichever comes first) unless an extension is otherwise granted by the court upon a showing of good cause therefor or a protective order is sought by the defendants and granted by the court. This 90-day period shall run separately as to each plaintiff and each defendant beginning on the date of filing of each defendant’s answer or dispositive motion (whichever comes first). The scheduling of a trial may be advanced upon notification from the parties that no further discovery is contemplated or that discovery has been completed prior to the deadline. Discovery materials shall not be filed with the Clerk of Court. No party shall be required to respond to any discovery not directed to him/her or served upon him/her by the opposing counsel/party. The undersigned incorporates herein those parts of the Local Rules imposing the following limitations on discovery: except with written permission of the court first obtained, Interrogatories may not exceed TWENTY-FIVE (25) to each party, Requests for Production of Documents and Things under Rule 34 of the Federal Rules of Civil Procedure may not exceed TEN (10) requests to each party, and Requests 7 for Admissions under Rule 36 of the Federal Rules of Civil Procedure may not exceed FIFTEEN (15) requests to each party. No party shall be required to respond to any such requests which exceed these limitations. REQUESTS FOR DISMISSAL AND/OR JUDGMENT Dismissal of this action or requests for judgment will not be considered by the court absent the filing of a separate motion therefor accompanied by a brief/memorandum of law citing supporting authorities. Dispositive motions should be filed at the earliest time possible, but in any event no later than thirty (30) days after the close of discovery unless otherwise directed by the court. SO ORDERED this 29th day of May, 2012. S/Stephen Hyles UNITED STATES MAGISTRATE JUDGE 8
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