Perkins v. Wilson

Full title: JOHNNIE B. PERKINS, Plaintiff v. Judge TOMMY WILSON, et al., Defendants

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

Date published: Dec 19, 2007

NO. 5:07-CV-349 (HL) (M.D. Ga. Dec. 19, 2007)

Opinion

NO. 5:07-CV-349 (HL).

December 19, 2007

PROCEEDINGS UNDER 42 U.S.C. §§ 1983, BEFORE THE U.S. MAGISTRATE JUDGE. ORDER

CLAUDE HICKS JR., Magistrate Judge

Plaintiff JOHNNIE B. PERKINS, a former prisoner, filed the instant pro se civil rights complaint pursuant to 42 U.S.C. § 1983. Because plaintiff's claims were too general for this Court to analyze, the Court directed him to supplement his complaint to answer certain questions, in particular about defendant Judge Wilson. Plaintiff filed a response but has failed to answer any of said questions about Judge Wilson in his supplemental complaint. Assuming plaintiff wished to withdraw his claims against Judge Wilson, the undersigned on November 28, 2007, recommended that Judge Wilson be dismissed as a defendant.

On December 5, 2007, the Court received a letter from plaintiff, apparently intended to be an objection to the Court's November 28^th recommendation, in which plaintiff alleges that on March 30, 2007, Judge Wilson compelled plaintiff, who was in custody at the time and ill, to sign certain documents authorizing the sale of plaintiff's house. According to plaintiff, Judge Wilson threatened that if plaintiff "did not sign the deeds to sell [his] house [he would] never get out of jail."

Claims against judges are generally barred by judges' absolute immunity from liability for judicial acts. Stump v. Sparkman , 435 U.S. 349, 356-57 (1978); Simmons v. Conger , 86 F.3d 1080, 1084-85 (11th Cir. 1996). The Supreme Court has recognized two circumstances in which a plaintiff may overcome a defendant's judicial immunity: "First, a judge is not immune from liability for nonjudicial actions, i.e., actions not taken in the judge's judicial capacity. . . . Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction." Mireles v. Waco , 502 U.S. 9, 11-12 (1991) (citations omitted).

Although it is by no means certain that plaintiff will prevail on his claim against Judge Wilson, the undersigned finds that plaintiff has alleged facts that would appear to suggest that Judge Wilson may have acted in a non-judicial manner. Thus, construing the allegations most favorably to plaintiff, this Court cannot determine that plaintiff's allegations are frivolous at this stage.

In light of the foregoing, the undersigned now VACATES his previously entered recommendation as to Judge Tommy Wilson only. In all other respects, the recommendation remains the same. IT IS HEREBY ORDERED AND DIRECTED that service be made as provided by law upon JUDGE TOMMY WILSON, and that he 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, 28 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 (including letters to the Clerk or to a judge) upon opposing parties or counsel for opposing parties if they are represented; and to attach to said original motions and pleadings 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 prisoner, may be taken at any time during the time period hereinafter set out provided prior arrangements are made with his custodian.

IT IS HEREBY ORDERED that discovery (including depositions and interrogatories) shall be completed WITHIN 90 DAYS from the date of filing of an ANSWER or DISPOSITIVE MOTION by the defendant(s), 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/dispositive motion. The scheduling of a trial herein 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/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

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

Under Local Rule 72, all prisoner complaints filed under provisions of 42 U.S.C. § 1983 are referred to a full-time United States Magistrate Judge for this district for consideration of all pretrial matters. In addition, 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 all of the parties. Whether the parties elect to proceed before a magistrate judge or retain their right to proceed before a U. S. district judge is strictly up to the parties themselves.

After the filing of responsive pleadings by the defendants, the Clerk of court is directed to provide ELECTION FORMS to the parties and/or to their legal counsel, if represented. Uponreceipt of the ELECTION FORMS, each party shall cause the same to be executed and returned to the Clerk's Office WITHIN FIFTEEN (15) DAYS. Counsel may execute ELECTION FORMS on behalf of their clients provided they have such permission from their clients. However, counsel must specify on the ELECTION FORMS on whose behalf the form is executed.

SO ORDERED.

ADDENDUM TO ORDER 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.

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.