Opinion
CIVIL ACTION NO. 5:12CV-P192-R
06-10-2013
JAMES DUNN PLAINTIFF v. KENTUCKY DEPARTMENT OF CORRECTIONS et al. DEFENDANTS
MEMORANDUM AND SCHEDULING ORDER
This matter is before the Court for initial review of Plaintiff James Dunn's pro se complaint under 28 U.S.C. § 1915A. Under § 1915A, the trial court must review a complaint brought by a prisoner seeking redress from governmental entities, officers, and/or employees and dismiss the complaint, or any portion of the complaint, if the court determines that it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. See § 1915A(b)(1), (2); McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).
In his complaint, Plaintiff seeks relief under 42 U.S.C. § 1983 for a violation of his First Amendment rights; under 42 U.S.C. § 1985; and under the Religious Land Use and Institutionalized Persons Act (RLUIPA). He sues the following Defendants for monetary, injunctive, and declaratory relief: Kentucky Department of Corrections (KDOC); LaDonna Thompson, KDOC Commissioner; Randy White, Kentucky State Penitentiary (KSP) Warden; Lt. Raymond Vinson, KSP Mailroom Supervisor; and Skyla Grief, KSP Program Director. Plaintiff claims that Defendants are denying him the free exercise of the Odinist/Asatru religion by denying him a Thor's Hammer medallion appropriate for his sect of Odinism and for denying him a personal set of runestones which "are fundamentally essential for [his] religious exercise."
Upon initial review, the Court will direct service of the complaint on Defendants.
IT IS THEREFORE ORDERED as follows:
(1) The Clerk of Court shall forward by certified mail, return receipt requested, one copy of the complaint (DN 1) and this Scheduling Order to the Justice & Public Safety Cabinet, Office of Legal Counsel, Frankfort, Kentucky. General Counsel shall have 30 days after receipt by certified mail of the complaint and this Scheduling Order to complete and return a notice of waiver of service for Defendants.
(2) Should counsel for the Justice & Public Safety Cabinet not represent any Defendant, the Court requests General Counsel to provide a forwarding or last known address for that Defendant so that it may ensure service. If the address is not public record, counsel shall file it under seal.
(3) The Clerk of Court is DIRECTED to prepare and issue summons at the address provided by the Justice & Public Safety Cabinet for any Defendant for whom a waiver is not returned, and the United States Marshal shall serve a copy of the complaint (DN 1) and summons on that Defendant in accordance with Rule 4 of the Federal Rules of Civil Procedure.
(4) Should Plaintiff receive notice that a summons is returned to the Court unexecuted, Plaintiff is WARNED that he must take steps to remedy the defect in service by providing additional information to the Court. Failure to do so within 120 days of entry of this Order may result in dismissal of the Defendant at issue. See Fed. R. Civ. P. 4(m).
(5) The answer to the complaint shall be filed no later than 60 days after waiver of service. However, if service is required, the answer shall be filed no later than 21 days after service of summons. Insofar as is practicable, the answer is to restate in separate paragraphs the allegations of the complaint, followed by Defendants' answer.
(6) The parties shall serve upon opposing parties, or their counsel, a copy of each document filed in this action as required by the Federal Rules of Civil Procedure, including a certificate of service stating the date on which the copy was sent to opposing parties. Any paper received by the Court which has not been filed with the Clerk, or which fails to include a certificate of service, MAY BE DISREGARDED by the Court.
(7) The parties shall complete all pretrial discovery herein no later than October 23, 2013. As a requirement of discovery, Defendants' counsel shall produce to Plaintiff all records or documentation which are relevant to the claim(s) set forth in this complaint that have survived initial review. Counsel shall certify that the production is complete and shall file the certification with the Court. Within the same time, Plaintiff shall provide counsel for Defendants any records or documentation relevant to his remaining claims. Plaintiff shall certify that production is complete and shall file the certification with the Court. A party who wishes to file discovery material with the Court must comply with Federal Rule of Civil Procedure 5(d). See Fed. R. Civ. P. 5(d)(1) ("[T]he following discovery requests and responses must not be filed until they are used in the proceeding or the court orders filing: depositions, interrogatories, requests for documents . . ., and requests for admission.") (emphasis added).
(8) This Order does not override a party's responsibility to timely and completely respond to any discovery requests made pursuant to Federal Rules of Civil Procedure 33, 34, and 36, nor does it prevent a party from otherwise engaging in discovery that is consistent with the Federal Rules of Civil Procedure.
The Court notes, however, that this action is exempt from the initial disclosure and conference requirements of Federal Rule of Civil Procedure 26. See Fed. R. Civ. P. 26(a)(1)(B)(iv) ("The following proceedings are exempt from initial disclosure . . . (iv) an action brought without an attorney by a person in custody of the United States, a state, or a state subdivision."); Fed. R. Civ. P. 26(f) (parties must confer "[e]xcept in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B)").
(9) No later than November 22, 2013, Plaintiff shall file a pretrial memorandum, setting forth in detail all facts upon which he bases his claim in this matter against each Defendant.
(10) No later than December 23, 2013, Defendants shall file a pretrial memorandum. In lieu thereof, or if Plaintiff fails to file the required pretrial memorandum, Defendants may file any dispositive motions, including a motion for summary judgment pursuant to Fed. R. Civ. P. 56.
(11) Either party may file dispositive motions at any time after providing the discovery required above, or after providing sufficient reason why discovery is unnecessary for resolution of the pending motion. All dispositive motions shall be filed no later than December 23, 2013.
(12) If any party wishes additional time to complete any of the actions directed above, a motion requesting any such extension must be filed with the Court before any such deadline expires. Any such motion to extend any time should indicate the reasons for extension. The Court will not grant an extension unless good cause is shown.
(13) Should Plaintiff change addresses during the pendency of this matter, he must provide written notice of a change of address to the Clerk of Court and to Defendants' counsel. See L.R. 5.2(d).
(14) Plaintiff is WARNED that his failure to notify the Clerk of Court of any address change or failure to comply with this or any subsequent order of the Court MAY RESULT IN A DISMISSAL OF THIS CASE.
(15) The Clerk of Court is DIRECTED to mail Plaintiff a copy of the Pro Se Prisoner Handbook.
Thomas B. Russell , Senior Judge
United States District Court
cc: Plaintiff, pro se
Defendants
General Counsel, Justice & Public Safety Cabinet, Office of Legal Counsel
4413.005