Opinion
NO. 5:18-CV-230-MTT-CHW
09-21-2018
LORENZO FOREHAND, Plaintiff, v. CHAPLAIN MICHAEL SAPP, Defendant.
ORDER AND RECOMMENDATION
Presently pending before the Court is a Complaint filed by pro se Plaintiff Lorenzo Forehand, an inmate presently incarcerated in the Wheeler Correctional Facility in Alamo, Georgia. Defendant removed this case to this Court on June 28, 2018, and the Complaint is ripe for screening under 28 U.S.C. § 1915A. Notice of Removal 1, ECF No. 3. Having conducted such screening, it is found that Plaintiff's religious freedom claims against Defendants Sapp, Johnson, Chaney, and Burse must proceed for further factual development. It is RECOMMENDED, however, that Plaintiff's motion to amend (ECF No. 11) and his motion for remand (ECF No. 4) be DENIED.
I. Application of 28 U.S.C. § 1915(g)
As a preliminary matter, it should be noted that had Plaintiff originally filed this action in this Court it would have been subject to scrutiny under 28 U.S.C. § 1915(g). Section 1915(g) bars a prisoner from bringing a civil action in federal court in forma pauperis
if [he] has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.This is known as the "three strikes provision." Under § 1915(g), a prisoner incurs a "strike" any time he has a federal lawsuit or appeal dismissed on the grounds that it is (1) frivolous, (2) malicious, or (3) fails to state a claim. See Medberry v. Butler, 185 F.3d 1189, 1192 (11th Cir. 1999); see also Daker v. Comm'r, Ga. Dep't of Corr., 820 F.3d 1278, 1283-84 (11th Cir. 2016) (confirming that "these three grounds are the only grounds that can render a dismissal a strike"). Once a prisoner incurs three strikes, his ability to proceed in forma pauperis in federal court is greatly limited: leave to proceed in forma pauperis may not be granted unless the prisoner is under imminent danger of serious physical injury. Medberry, 185 F.3d at 1192.
A review of court records on the Federal Judiciary's Public Access to Court Electronic Records ("PACER") database reveals that Plaintiff has filed multiple federal lawsuits and that at least three of his complaints or appeals have been dismissed as frivolous, malicious, or for failure to state a claim. See, e.g., Order Dismissing Compl., Forehand v. Williams, ECF No. 6 in Case No. 4:08-CV-00087-CDL (M.D. Ga. July 11, 2008) (adopting recommendation to dismiss as frivolous and for failure to state a claim); Order Dismissing Compl., Forehand v. Donalds, ECF No. 7 in Case No. 1:07-cv-01665-BBM (N.D. Ga. Jan. 18, 2008) (dismissing as frivolous); Order Dismissing Appeal, Forehand v. Donalds, Appeal No. 08-10750-G (11th Cir. July 7, 2008) (three-judge panel dismissing appeal as frivolous); see also Order Dismissing Compl., Forehand v. Edwards, ECF No. 6 in Case No. 1:08-CV-00170-WLS-RWH (M.D. Ga. Dec. 31, 2008) (dismissing pursuant to § 1915(g)). Plaintiff would accordingly be barred from prosecuting this action in forma pauperis, and his Complaint would be subject to dismissal, unless he could establish that he is imminent danger of serious physical injury. 28 U.S.C. § 1915(g); Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (per curiam) ("[T]he proper procedure is for the district court to dismiss the complaint without prejudice when it denies the prisoner leave to proceed in forma pauperis pursuant to the three strikes provision of § 1915(g).").
Plaintiff sometimes uses the middle initial "A" and sometimes uses the middle initial "X," but the prisoner number issued by the Georgia Department Corrections is the same for each of the cases listed as strikes.
In this case, however, Plaintiff is not proceeding in forma pauperis because Defendant Sapp removed this action to this Court and paid the filing fee. The clear language of § 1915(g) applies solely to actions in forma pauperis. See, e.g., Howard v. Braddy, 5:12-CV-404-MTT, 2013 WL 5461680, at *4 (M.D. Ga. Sept. 30, 2013) (citing Jae v. Stickman, No. 12-1332, 2012 WL 5830633, at *1 (W.D. Pa. 2012)). This Court thus declines to construe § 1915(g) to apply to cases that have been removed to this Court. See id. Nevertheless, because Plaintiff is a prisoner seeking redress from a government employee, Plaintiff's claims must still be screened pursuant to 28 U.S.C. § 1915A, as discussed below.
II. Preliminary Screening
A. Standard of Review
In accordance with the Prison Litigation Reform Act ("PLRA"), the district courts are obligated to conduct a preliminary screening of every complaint filed by a prisoner who seeks redress from a government entity, official, or employee. See 28 U.S.C. § 1915A(a). When conducting preliminary screening, the Court must accept all factual allegations in the complaint as true. Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006); Hughes v. Lott, 350 F.3d 1157, 1159-60 (11th Cir. 2003). Pro se pleadings, like the one in this case, are "held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed." Id. (internal quotation marks omitted). Still, the Court must dismiss a prisoner complaint if it "(1) is 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." 28 U.S.C. § 1915A(b).
A claim is frivolous if it "lacks an arguable basis either in law or in fact." Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008) (internal quotation marks omitted). The Court may dismiss claims that are based on "indisputably meritless legal" theories and "claims whose factual contentions are clearly baseless." Id. (internal quotation marks omitted). A complaint fails to state a claim if it does not include "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)). The factual allegations in a complaint "must be enough to raise a right to relief above the speculative level" and cannot "merely create[] a suspicion [of] a legally cognizable right of action." Twombly, 550 U.S. at 555 (first alteration in original). In other words, the complaint must allege enough facts "to raise a reasonable expectation that discovery will reveal evidence" supporting a claim. Id. at 556. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678.
To state a claim for relief under § 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 Cnty., 50 F.3d 1579, 1582 (11th Cir. 1995). If a litigant cannot satisfy these requirements or fails to provide factual allegations in support of his claim or claims, the complaint is subject to dismissal. See Chappell v. Rich, 340 F.3d 1279, 1282-84 (11th Cir. 2003).
B. Factual Allegations
Plaintiff's claims arise from his incarceration at the Dooly State Prison ("DSP"). Attach. 1 to Notice of Removal 7, ECF No. 1-1. Plaintiff alleges that he "is a practicing Muslim of the Islamic Faith as taught by the Nation of Islam . . . leaders Elijah Muhammad and Minister Louis Farrakhan." Id. Plaintiff states that his religion requires him to fast during the entire month of December (the "December Fast"). Id. Plaintiff also participates in the fast of Ramadan. Id. at 8. Plaintiff alleges that he has participated in both of these fasts for fifteen straight years. Id.at 7-8.
Plaintiff signed up for the December Fast for 2016. Id. at 9. When Plaintiff checked to ensure that his name had been added to the roster, however, he was advised that Defendant Sapp, the prison's chaplain, had not added his name. Id. Defendant Sapp informed Plaintiff that "'as a Ramadan participant, you can't do December Fast. You are allowed to do one or the other.'" Id. at 10. Plaintiff was thus not permitted to participate in the December Fast in 2016. Id. Plaintiff again attempted to participate in the 2017 December Fast, but Defendant Sapp refused to add Plaintiff to the roster. See id. at 11-12.
Plaintiff contends he has been denied the ability to practice his religion in violation of the United States Constitution and the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000c et seq. As a result of these alleged violations, Plaintiff seeks declaratory and injunctive relief, costs, and "any additional relief this Court deems just, proper, and equitable." Id. at 5.
C. Plaintiff's Claims
1. Religious Freedom Claims
Plaintiff first contends that Defendant Sapp's actions interfered with his freedom to practice his Muslim religion. The First Amendment, as applied to the states through the Due Process Clause of the Fourteenth Amendment, provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." U.S. Const. amend. I. "Although prison inmates retain protections afforded by the First Amendment's Free Exercise Clause," prison officials may limit a prisoner's exercise of sincerely held religious beliefs if such "limitations are 'reasonably related to legitimate penological interests.'" Johnson v. Brown, 581 F. App'x 777, 780 (11th Cir. 2014) (per curiam) (quoting O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987)). RLUIPA requires the government to justify any substantial burden on a prisoner's religious exercise by demonstrating a compelling governmental interest. See Smith v. Allen, 502 F.3d 1255, 1266 (11th Cir. 2007) abrogated on other grounds by Sossamon v. Texas, 131 S. Ct. 1651, 1659 (2011). "To establish a prima facie case under section 3 of RLUIPA, a plaintiff must demonstrate 1) that he engaged in a religious exercise; and 2) that the religious exercise was substantially burdened." Smith v. Governor for Ala., 562 F. App'x 806, 813 (11th Cir. 2014) (per curiam) (internal quotation marks omitted).
Plaintiff's allegations are sufficient to warrant further factual development. While Defendant Sapp may assert "legitimate penological interests" that would justify his decision not to permit Plaintiff to participate in both Ramadan and the December Fast, at this stage of the litigation such interests are not apparent from the face of the Complaint. Johnson, 581 F. App'x at 780-81 (reversing district court's dismissal of RLUIPA and First Amendment free exercise claims where prisoner's pro se complaint alleged that prison officials infringed his practice in numerous ways); Saleem v. Evans, 866 F.2d 1313, 1316 (11th Cir. 1989) (per curiam) (noting in appendix to case that generally the court should "permit dismissal of a First Amendment claim only if it involves a religious claim so facially idiosyncratic that neither a hearing nor state justification of its regulation is required"). Plaintiff's religious freedom claims must therefore proceed against Defendant Sapp.
2. Equal Protection Claims
Plaintiff next alleges that Defendant Sapp's refusal to permit him to participate in both Ramadan and the December Fast violated his equal protection rights. See, e.g., Attach. 1 to Notice of Removal 15, ECF No. 1-1. The Equal Protection Clause of the Fourteenth Amendment provides: "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV. "In order to properly plead an equal protection claim, a plaintiff need only allege that similarly situated persons have been treated disparately through state action." Williams v. Sec'y for Dep't of Corr., 131 F. App'x 682, 685-86 (11th Cir. 2005) (per curiam). Plaintiff alleges that Christian inmates at DSP are permitted to participate in a wide range of religious activities "with no restriction" and that Christian inmates are not required to choose between participating in one religious activity over another. See Attach. 1 to Notice of Removal 16-17, ECF No. 1-1. Construed very liberally, these allegations are sufficient to allow Plaintiff's equal protection claims against Defendant Sapp to proceed for further factual development.
3. Supervisory Liability Claims
In his first Amended Complaint, Plaintiff alleges that Glen Johnson, the warden at DSP; Mable Chaney, the deputy warden of care and treatment at DSP; and William Burse, an employee of the Georgia Department of Corrections, should all be held liable for Defendant Sapp's decision to deny Plaintiff the ability to participate in multiple fasts. More specifically, Plaintiff contends that on December 1, 2016, he filed a grievance concerning Defendant Sapp's refusal to allow Plaintiff to attend the 2016 December Fast. Am. Compl. 4, ECF No. 5. Plaintiff alleges that Defendants Johnson, Chaney, and Burse each denied this grievance and refused to correct Defendant Sapp's decision. See id. at 5-6. Plaintiff further alleges facts suggesting that these denials were made pursuant to established Georgia Department of Corrections policy. See id. at 6.
It is well-settled in the Eleventh Circuit that supervisory officials are not liable under § 1983 for the unconstitutional acts of their subordinates on the basis of respondeat superior or vicarious liability. See, e.g., Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003). Rather, supervisors can only be held liable under § 1983 if they personally participated in unconstitutional conduct or if there is a causal connection between their actions and the alleged constitutional violation. See, e.g., Hendrix v. Tucker, 535 F. App'x 803, 805 (11th Cir. 2013) (per curiam). A causal connection can be established if
(1) a history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged deprivation and he fail[ed] to do so; (2) the supervisor's improper custom or policy le[d] to deliberate indifference to constitutional rights; or (3) facts support an inference that the supervisor directed the subordinates to act unlawfully or knew that the subordinates would act unlawfully and failed to stop them from doing so.Id. Again construing Plaintiff's allegations liberally, as the Court must at this early stage, it cannot be conclusively said that Plaintiff's claims against Defendants Johnson, Chaney, and Burse are entirely without merit. Plaintiff has alleged that Defendant Sapp's decision was made pursuant to a Georgia Department of Corrections policy, and Plaintiff has also alleged that this policy was in place for at least one full year—from December of 2016 through December of 2017—suggesting that the supervisory Defendants had an opportunity to revisit the policy in light of Plaintiff's grievances concerning the same. Cf., e.g., Hoever v. Belleis, 703 F. App'x 908, 911-12 (11th Cir. 2017) (per curiam) (holding that prisoner's supervisory liability claims against supervisors who denied grievances failed to state a claim where prisoner "failed to identify a policy that resulted in a constitutional violation"). Accordingly, Plaintiff's supervisory liability claims against Defendants Johnson, Chaney, and Burse shall proceed for further factual development.
4. State Law Claims
Plaintiff also appears to raise state law claims. See, e.g., Attach. 1 to Notice of Removal 13, ECF No. 1-1. Although it has been found that Plaintiff's federal claims shall proceed for further factual development, it is possible that they may fail if faced with a motion to dismiss or a motion for summary judgment. In the event that the federal claims over which the Court has original jurisdiction are dismissed, the Court will likely decline to exercise supplemental jurisdiction over Plaintiff's state law claims. 28 U.S.C. § 1367(c)(3). Therefore, as federal jurisdiction over Plaintiff's state law claims remains an unsettled issue, the Court finds it unnecessary and inappropriate to reach the merits of such claims at this early stage of the case.
III. Motion to Remand
Plaintiff has also filed a motion to remand his case back to the state court (ECF No. 4). Plaintiff appears to contend that Defendants' decision to remove this case constitutes "bad faith" because it will prohibit Plaintiff from pursuing his claims pursuant to 28 U.S.C. § 1915(g). See Obj. to Removal 2, ECF No. 4. As noted above, however, § 1915(g) does not apply in this case at this time. Furthermore, the Eleventh Circuit has clearly held that remand of a "three strikes" prisoner's claim to the state court is inappropriate where the defendants properly removed the case. See Lloyd v. Benton, 686 F.3d 1225, 1227-28 (11th Cir. 2012) (holding that § 1915(g) "does not deprive the district court of its jurisdiction granted by 28 U.S.C. §§ 1331, 1441(a)"). Accordingly, it cannot be said that Defendant removed this case in bad faith. Plaintiff cites to no other authority for the proposition that removal was improper in this case. Accordingly, it is RECOMMENDED that Plaintiff's motion for remand (ECF No. 4) be DENIED.
IV. Motion to Amend
Plaintiff has also filed a motion to amend his Complaint (ECF No. 11). Plaintiff states that "since this action has been pending in this court, Plaintiff has suffered retaliations of various kind[s] exhibited by officers and staffs at Dooly State Prison, the worst being a retaliatory transfer[.]" Mot. Am. 1, ECF No. 11.
Federal Rule of Civil Procedure 15(a) allows a party to amend its pleading once as a matter of right within twenty-one days after serving it or, "if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier." Fed. R. Civ. P. 15(a)(1). "In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave." Fed. R. Civ. P. 15(a)(2). Plaintiff has already amended his Complaint once as a matter of right, as noted above, and Plaintiff has not obtained leave of opposing counsel to amend his Complaint a second time. See Def.'s Resp. to Mot. Am. 1, ECF No. 14 (urging denial of Plaintiff's motion for leave to amend). Plaintiff must therefore obtain leave of Court to amend his Complaint.
While the Court should freely give leave to amend when justice so requires, the interests of justice do not support an amendment to add Plaintiff's retaliation claims in this case. "A district court may deny leave to amend a complaint if it concludes that the proposed amendment would be futile, meaning that the amended complaint would not survive a motion to dismiss." Christman v. Walsh, 416 F. App'x 841, 844 (11th Cir. 2011) (per curiam). It is well established that an adverse action imposed in retaliation for a prisoner's exercise of a constitutionally protected right is actionable. Wildberger v. Bracknell, 869 F.2d 1467, 1468 (11th Cir. 1989) (per curiam). Generally, to prove a retaliation claim an inmate needs to show that he engaged in protected conduct; that the prison official's retaliatory conduct adversely affected the protected conduct; and a causal connection between the protected conduct and the adverse action. See, e.g., Moton v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011). But "broad, conclusory allegations of retaliation are insufficient to state a claim under section 1983." Robinson v. Boyd, No. 5:03CV25/MMP/MD, 2005 WL 1278136, at *3 (N.D. Fla. May 26, 2005). In this case, Plaintiff's conclusory allegations of retaliation fail to state a cognizable constitutional claim, and the Court can properly deny Plaintiff's motion to amend as futile.
Plaintiff alleges that "Defendant Sapp, along with Glen Johnson and authoritative figures from Georgia Department of Corrections colluded with one another to have Plaintiff transferred as a punishment for filing a lawsuit against Sapp and grievances regarding legal mail issues." Attach. 2 to Mot. Am. 4, ECF No. 11-2. Plaintiff alleges no facts suggesting that Defendant Sapp had anything to do with Plaintiff's transfer, nor does he allege any facts demonstrating that Defendants Sapp and Johnson somehow colluded to cause the transfer. See e.g., Harvey v. Harvey, 949 F.2d 1127, 1133 (11th Cir. 1992) (holding that to properly plead a conspiracy, a "plaintiff must plead in detail, through reference to material facts, the relationship or nature of the conspiracy"). Furthermore, even assuming Defendant Johnson made the decision to transfer Plaintiff, Plaintiff alleges that the transfer was due to "population redistribution," and he does not allege any facts suggesting that this motive was somehow pretextual. Attach. 2 to Mot. Am. 4, ECF No. 11-2. At most, Plaintiff alleges that the transfer occurred "suddenly" and within two days of the date Plaintiff dropped his grievance against Defendant Johnson. Id. But Plaintiff pleads no other facts supporting Plaintiff's belief that the successful resolution of his grievance would have prompted Defendant Johnson to retaliate against Plaintiff. See Thomas v. Lawrence, 421 F. App'x 926, 929 (11th Cir. 2011) (per curiam) (affirming dismissal of retaliation claims where prisoner's grievance complained about only one staff member and the "complaint failed to allege any facts that would suggest that any of the other named defendants had a reason to retaliate against him for filing the grievance" against the staff member named in the grievance). Plaintiff has therefore failed to plead sufficient facts to "raise a right to relief above the speculative level." Twombly, 550 U.S. at 555.
Plaintiff does not appear to raise a substantive claim regarding any delays in receipt of his legal mail. See, e.g., Attach. 1 to Mot. Am. Compl. 3, ECF No. 11-1 (describing claims as retaliation).
Plaintiff filed his grievance regarding prison mail issues on July 10, 2018 and he dropped his grievance on August 14, 2018. See Mot. Am. 2-3, ECF No. 11.
In addition, it is clear from Plaintiff's pleadings that he has failed to exhaust his administrative remedies with respect to the retaliation claims he seeks to add to this case. 42 U.S.C. § 1997e(a) provides, "No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." This provision generally requires that a prisoner file an administrative grievance and then appeal any denial of relief through all levels of review that comprise the grievance process before filing suit in federal court. Brown v. Sikes, 212 F.3d 1205, 1207 (11th Cir. 2000); see also Woodford v. Ngo, 548 U.S. 81, 93 (2006). The exhaustion of available administrative remedies is a mandatory requirement and cannot be waived even when the grievance process is futile or inadequate. See Porter v. Nussle, 534 U.S. 516, 524 (2002); Alexander v. Hawk, 159 F.3d 1321, 1325-26 (11th Cir. 1998). Although failure to exhaust is an affirmative defense, dismissal of a complaint is warranted under the screening process set out in 28 U.S.C. § 1915A when it appears clear "on the face of the complaint" that the plaintiff failed to exhaust all available administrative remedies prior to filing suit in federal court and thereby cannot state a claim for relief. See Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011) (per curiam).
Plaintiff alleges that the retaliatory transfer occurred on August 16, 2018. Attach. 1 to Mot. Am. 3, ECF No. 11-1. Plaintiff signed his motion to amend on August 18, 2018. Mot. Am. 5, ECF No. 11. It is therefore plain on the face of the pleadings that even if Plaintiff did file a grievance with respect to his retaliatory transfer, Plaintiff would have failed to allow jail officials sufficient time and opportunity to both respond to his grievance and to address his appeal prior to filing this lawsuit. See, e.g., Anderson v. Donald, 261 F. App'x 254, 256 (11th Cir. 2008) (per curiam) (Georgia inmate failed to exhaust administrative remedies where he failed to appeal grievable claims after presenting to the appropriate party); see also Woodford, 548 U.S. at 95 (holding that "[t]he benefits of exhaustion can be realized only if the prison grievance system is given a fair opportunity to consider the grievance"); Clark v. Owens, Civil No. 5:15-CV-0202-MTT-MSH, 2015 WL 10044277, at *3 (M.D. Ga. Dec. 23, 2015) (noting that Georgia Department of Corrections Standard Operating Procedures requires prisoner to file appeal of original grievance to Central Office where commissioner has 100 days to deliver decision on appeal); Brand v. Hamilton, No. 3:10cv377/LAC/MD, 2010 WL 4973358, at *3 (N.D. Fla. Oct. 27, 2010) ("Clearly, the two days between the event complained of and the signing of the complaint would not have been sufficient time to pursue and exhaust administrative remedies available to [the prisoner]."). Plaintiff has thus failed to state a viable claim for relief.
Plaintiff states that his retaliatory transfer "is non-grievable." Mot. Am. 1, ECF No. 11. Defendant Sapp states that while transfers are not generally grievable, all retaliation is grievable. Def.'s Resp. Mot. Am. 3 n.1, ECF No. 14; see also Holmes v. Dalrymple, No. CV 312-099, 2013 WL 2384102, at *4 (S.D. Ga. May 30, 2013) (discussing Georgia Department of Corrections policy and finding it "abundantly clear that, although the simple transfer of an inmate standing alone does not present a grievable issue, the transfer of an inmate coupled with a retaliation claim can be grieved and indeed must be grieved in order to satisfy the administrative exhaustion requirement").
In sum, Plaintiff's proposed amendments seeking to add a retaliatory transfer claim are futile. It is therefore RECOMMENDED that Plaintiff's motion to amend (ECF No. 11) be DENIED.
V. Conclusion
In accordance with the foregoing, it is found that Plaintiff's religious freedom claims against Defendants Sapp, Johnson, Chaney, and Burse must proceed for further factual development. It is RECOMMENDED, however, that Plaintiff's motion to amend (ECF No. 11) and his motion for remand (ECF No. 4) be DENIED.
OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to these recommendations with the Honorable Marc T. Treadwell, United States District Judge, WITHIN FOURTEEN (14) DAYS after being served with a copy of this Recommendation. The parties may seek an extension of time in which to file written objections, provided a request for an extension is filed prior to the deadline for filing written objections. Failure to object in accordance with the provisions of § 636(b)(1) waives the right to challenge on appeal the district judge's order based on factual and legal conclusions to which no objection was timely made. See 11th Cir. R. 3-1.
ORDER FOR SERVICE
It appears Defendant Sapp has already been served in this case. Plaintiff has not been granted leave to proceed in forma pauperis in this Court, and thus Plaintiff is responsible for making service on Defendants Johnson, Chaney, and Burse. It is accordingly ORDERED that Plaintiff make service on those Defendants and that they file an Answer, or such other response as may be appropriate under Rule 12, 28 U.S.C. § 1915, and the Prison Litigation Reform Act. To the extent Plaintiff requests that Defendant Sapp's attorney be required to serve any additional Defendants, see Attach. 1 to Mot. Am. 5, ECF No. 11-1, such request is DENIED. Plaintiff must effect service of process in compliance with Rule 4 of the Federal Rules of Civil Procedure. 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 Rule 4(d).
DUTY TO ADVISE OF ADDRESS CHANGE
During the pendency of this action, all parties shall 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 a change of address may result in the dismissal of a party's pleadings.
DUTY TO PROSECUTE ACTION
Plaintiff is also 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 Procedure for failure to prosecute. Defendants are similarly 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, 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.
DISCOVERY
Plaintiff shall not commence discovery until an answer or dispositive motion has been filed on behalf of the Defendant 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 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.
IT IS HEREBY ORDERED that discovery (including depositions and the service of written discovery requests) shall be completed within 90 days of the date of filing of an answer or dispositive motion by the Defendants (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 defendant and granted by the court. This 90-day period shall run separately as to Plaintiff and Defendants beginning on the date of filing of Defendants' 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 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
The Court shall not consider requests for dismissal of or judgment in this action, absent the filing of a 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 one hundred - twenty (120) days from when the discovery period begins unless otherwise directed by the Court.
SO ORDERED AND RECOMMENDED, this 21st day of September, 2018.
s/ Charles H. Weigle
Charles H. Weigle
United States Magistrate Judge