Denney v. Nelson

Full title: MICHAEL DAVID DENNEY, Plaintiff v. Warden CYNTHIA NELSON, Defendant

Court: United States District Court, M.D. Georgia, Albany Division

Date published: Feb 23, 2007

NO. 106-cv-172 (WLS) (M.D. Ga. Feb. 23, 2007)

Opinion

NO. 106-cv-172 (WLS).

February 23, 2007

ORDER

RICHARD HODGE, Magistrate Judge

In compliance with the Court's previous order, pro se plaintiff MICHAEL DAVID DENNEY has filed a supplement to his complaint (Tab # 5).

In his original complaint, plaintiff alleged that he was denied access to the courts during his confinement at Autry State Prison when former Autry Warden Cynthia Nelson ordered in August 2006 that plaintiff's legal materials be confiscated. In the Court's previous order, the Court instructed plaintiff to supplement his complaint by providing the following information: (1) the nature of his missing legal materials; (2) the case name and number, as well as the specific type of litigation of any court case that was allegedly impaired as a result of plaintiff's inability to obtain legal materials; and (3) the specific way plaintiff was hindered in each case and how such injury would have been avoided had his legal materials not been confiscated. In addition, plaintiff was advised that, due to service of process issues, if he wished to pursue claims against his Joe Doe defendants, he must try and ascertain their names.

Plaintiff explained in his supplement that his missing legal material included "exculpatory evidence" in plaintiff's state criminal case (# 2002-CR-201) and federal criminal case (# 5:01-CR-75 (DF)), as well as various other pleadings and court documents.

Regarding the specific way plaintiff was hindered, plaintiff alleges that he has been unable to file his unspecified habeas corpus petition in a timely manner and was delayed in his filing of other unspecified legal pleadings.

As to the defendants referred to as John Doe CERT officers, plaintiff failed to provide any names for said defendants. As explained to plaintiff in this Court's February 1, 2007, order, the Court has no way of knowing the true name of the Doe defendants in order to perfect service of process in accordance with Fed.R.Civ.P. 4. Therefore, no service will be attempted. Plaintiff is advised that it is his responsibility to ascertain the identity of the John Doe Officers and that he must do so before the applicable statute of limitations expires.

Upon this Court's review of plaintiff's litigation history, including his federal habeas corpus petition which was dismissed by this Court in 2005, it is not clear that any future legal proceedings were available to plaintiff when defendant Nelson confiscated plaintiff's legal materials in August 2006. It thus does not appear that plaintiff has suffered any injury as a result of such confiscation. In Hyland v. Parker , 163 Fed. Appx. 793, 798 (11^th Cir. 2006), the Eleventh Circuit Court of Appeals held that at the pleading stage, the Court may "not dismiss an 'access to court claim based upon a failure to allege actual injury." Given that plaintiff is proceeding pro se and construing all facts liberally in favor of plaintiff, the Court will allow this complaint to go forward against Warden Nelson only.

Accordingly, it is hereby ORDERED that service be made as provided by law upon Warden Nelson, and that she file a Waiver of Reply, an Answer, or such other response as may be appropriate under Rule 12 of the FEDERAL RULES OF CIVIL PROCEDURE, U.S.C. § 1915, and the Prison Litigation Reform Act.

DUTY TO ADVISE OF ADDRESS CHANGE

During the pendency of this action, each party shall at all times keep the clerk of this court and all opposing attorneys and/or parties advised of his 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 Procedure for failure to prosecute. Defendants are advised that they are expected todiligently 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; to serve copies of all motions, pleadings, discovery, and correspondence upon opposing parties or counsel for opposing parties if they are represented; and to attach to said original motions, pleadings, and correspondence filed with the Clerk 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.). The Clerk of Court will not serve or forward copies of such motions, pleadings, and correspondence on behalf of the parties.

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 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 interrogatories) shall be completed within 90 days of the date of filing of an answer or dispositive motion by the defendant 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 and/or dispositive motion. 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 or served upon him by the opposing counsel/part. 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

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.

ELECTION TO PROCEED BEFORE THE UNITED STATES MAGISTRATE JUDGE

28 U.S.C. § 636(c)(1) authorizes and empowers full-time magistrate judges to conduct any and all proceedings in a jury or nonjury civil matter and to order the entry of judgment in a case upon the written consent of the parties. If the parties desire for the United States Magistrate Judge to hear this case through trial and the entry of judgment, they may obtain the necessary consent forms from the Clerk of the Court.

SO ORDERED.

NOTICE TO ALL PARTIES

PURSUANT TO THE COURT'S ORDER REGARDING DISCOVERY SET OUT ABOVE, NO DISCOVERY SHALL BE PERMITTED IN THIS CASE UNTIL AN ANSWER OR DISPOSITIVE MOTION (e.g., MOTION TO DISMISS, MOTION FOR SUMMARY JUDGMENT, MOTION FOR JUDGMENT ON THE PLEADINGS) HAS BEEN FILED BY THE DEFENDANT(S).

PURSUANT TO THE FEDERAL RULES OF CIVIL PROCEDURE, DISCOVERY (DEPOSITIONS, INTERROGATORIES, REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS, REQUESTS FOR ADMISSIONS, ETC., AND RESPONSES THERETO) SHALL NOT BE FILED WITH THE CLERK OF COURT.NOTE THAT THIS IS A CHANGE IN THE PROCEDURE HERETOFORE FOLLOWED IN THIS DISTRICT.

DO NOT FILE ANY DISCOVERY WITH THE COURT UNLESS YOU ARE SPECIFICALLY DIRECTED TO DO SO BY THE COURT OR UNLESS FILING IS NECESSARY TO SUPPORT OR CONTEST A MOTION TO COMPEL DISCOVERY, OBJECTION TO DISCOVERY, DISPOSITIVE MOTION, OR SIMILAR MOTION. THE CLERK IS DIRECTED TO RETURN ANY SUBMITTED DISCOVERY TO THE PARTY SUBMITTING IT UNLESS IT IS FILED PURSUANT TO AN ORDER OF THE COURT OR IN SUPPORT OF A MOTION TO COMPEL, OBJECTION TO DISCOVERY, DISPOSITIVE MOTION, OR SIMILAR MOTION.