Opinion
No. 5:06-CV-132(CAR).
May 19, 2006
ORDER RECOMMENDATION
Plaintiff HARDEN MILLARD WALKER, currently an inmate at Macon State Prison ("MSP") in Oglethorpe, Georgia, has filed this pro se 42 U.S.C. § 1983 action (Tab # 1) and supplement (Tab # 8). Plaintiff has paid the initial partial filing fee of $10.00 as ordered by this Court on April 27, 2006. The unpaid balance of plaintiff's filing fee is $340.00; plaintiff is obligated to pay this amount in monthly payments as described later in this Order and Recommendation.
I. STANDARD OF REVIEW A. 28 U.S.C. § 1915(e)(2)
Pursuant to 28 U.S.C. § 1915(e)(2), the Court is required to review complaints filed by prisoners against a governmental entity or its employees and dismiss any portion of the complaint the Court finds: (1) is frivolous or malicious; (2) fails to state a claim on which relief may be granted; or (3) seeks monetary relief against a defendant who is immune from such relief. An action is frivolous when the plaintiff's legal theory or factual contentions lack an arguable basis either in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). In determining whether a cause of action fails to state a claim on which relief may be granted, as contemplated by Federal Rule of Civil Procedure 12(b)(6), the Court must dismiss "if as a matter of law `it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations,' . . . without regard to whether it is based on an outlandish legal theory or on a close but ultimately unavailing one." Neitzke, 490 U.S. at 327 (quoting Hishon v. King Spalding, 467 U.S. 69, 73 (1984)).
B. General Requirements of 42 U.S.C. § 1983
In order to state a claim for relief under section 1983, a plaintiff must allege two elements. First, the plaintiff must allege that an act or omission deprived him of a right, privilege, or immunity secured by the Constitution of the United States. See Wideman v. Shallowford Community Hosp., Inc., 826 F.2d 1030, 1032 (11th Cir. 1987). Second, the plaintiff must allege that the act or omission was committed by a person acting under color of state law. Id. II. MISCELLANEOUS MOTIONS
Since filing his complaint, plaintiff has filed two motions with the Court: "Motion to Amend Issues Concerning Relief" (Tab # 6) and "Motion for Consideration Requesting to Express a Full Explanation why the Informal Grievance Deadline was Not Met in Required Time Period, due to Extraordinary Reasons" (Tab # 7). In his first motion, plaintiff merely elaborates on the nature of his requested relief, while in the second motion, plaintiff attempts to explain why he may have failed to timely exhaust his administrative remedies. Such motions are unnecessary and although the Court will consider the information contained therein, both motions are DENIED. III. BACKGROUND
According to plaintiff's complaint and supplement, on February 18, 2006, a fellow inmate at MSP assaulted plaintiff with a mop handle. Plaintiff alleges that the mop handle was supposed to be locked up, away from the inmate activity area, but was not. Plaintiff additionally alleges that Officer Loretta Mitchell witnessed the assault but did not take immediate action to stop it ( e.g., by calling for assistance). Plaintiff further alleges that although Officer Mitchell gave plaintiff a pass to medical within five to ten minutes of the assault, she failed to provide him with any assistance to walk to medical. Lastly, plaintiff appears to complain that Officer Mitchell improperly failed to pursue criminal charges against plaintiff's attacker. As a result of the assault, plaintiff sustained two broken bones in his jaw and is fearful of being attacked again. He files this action seeking equitable relief and damages.
As part of his relief, plaintiff asks for a "speedy decision from the state writ of habeas corpus hearing." It appears that plaintiff is seeking some form of mandamus relief, i.e., an order from this court requiring the state court to expedite review of plaintiff's habeas petition. This court, however, has no power to issue a writ of mandamus to direct state judicial officials in the performance of their duties and functions. See Moye v. Clerk, DeKalb County Superior Court, 474 F.2d 1275, 1275-76 (5th Cir. 1973). To the extent that plaintiff complains that an earlier (presumably favorable) decision would have resulted in plaintiff's release from prison, thereby avoiding the assault, the Court finds this claim is not constitutionally cognizable.
In addition to naming as a defendant Officer Loretta Mitchell, plaintiff also names James Donald, Commissioner of the Georgia Department of Corrections ("GDOC"), and Hilton Hall, Warden of MSP.
Although he was not named as a defendant in plaintiff's original complaint, a reading of plaintiff's supplement, filed eleven days after the original complaint, reveals that plaintiff intends to include Donald as a defendant in this proceeding. Accordingly, the caption of the complaint is amended to add said defendant thereto. For future reference, plaintiff is advised that if he wishes to assert claims against additional defendants in this case, he must file a motion to amend his complaint to name additional defendants.
IV. DISCUSSION A. Claims against Defendants Donald and Hall
Plaintiff alleges that GDOC Commissioner James Donald and Warden Hilton Hall are "legally responsible" for MSP operations. Plaintiff does not connect either Donald or Hall with plaintiff's assault.
A plaintiff cannot prevail under section 1983 based solely on a theory of respondeat superior. Hardin v. Hayes, 957 F.2d 843, 849 (11th Cir. 1990); Rogers v. Evans, 792 F.2d 1052, 1058 (11th Cir. 1986). In order to prevail on a section 1983 claim against a supervisory official, a plaintiff must show that the named defendant was actually involved in, or exercised control or direction over, the alleged constitution deprivation. Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003). The plaintiff must also allege that there is an ordinance, policy, or practice that is the "moving force" behind the alleged deprivation of rights by individual employees in their official capacity. Kentucky v. Graham, 473 U.S. 159 (1985); Mandel v. Doe, 888 F.2d 783, 791 (11th Cir. 1989).
Plaintiff has not alleged that Donald or Hall were actually involved in, or exercised control or direction over, the alleged constitutional deprivations in this case. Although plaintiff alleges in summary fashion that Hall "promulgated policies deliberately indifferent to inmate's personal security," he cites no such specific policy. It is the alleged failure of Officer Mitchell to follow the only policy mentioned by plaintiff (that of storing mop handles away from inmates), not the policy itself, that may have deprived plaintiff of his rights.
Accordingly, it is RECOMMENDED that plaintiff's claims against JAMES DONALD and HILTON HALL be DISMISSED and that they be terminated as defendants herein. Under 28 U.S.C. § 636(b)(1), plaintiff may serve and file written objections to these recommendations with the district judge to whom this case is assigned, WITHIN TEN (10) DAYS after being served a copy of this order. B. Claims against Defendant Mitchell
Plaintiff alleges that defendant Officer Loretta Mitchell is liable to him for damages for failing to lock up the mop handle; for failing to take immediate action to stop the assault; for making plaintiff walk unassisted to medical; and for failing to press charges against plaintiff's attacker.
Plaintiff's claim that Mitchell failed to press charges against plaintiff's attacker is clearly frivolous. See e.g., Oliver v. Collins, 904 F.2d 278, 281 (5th Cir. 1990) ("The decision to file or not file criminal charges falls within [the] category of acts that will not give rise to [civil rights] liability."). Furthermore, prison regulations calling for the criminal prosecution of inmates in certain situations do not create a protectible liberty interest for an inmate in having another inmate prosecuted. Gangloff v. Poccia, 888 F. Supp. 1549, 1559 (M.D. Fla. 1995) (citing Hewitt v. Helms, 459 U.S. 460, 468-71 (1983)). Such claim should therefore be DISMISSED. It is so RECOMMENDED.
Under 28 U.S.C. § 636(b)(1), plaintiff may serve and file written objections to this recommendation with the district judge to whom this case is assigned, WITHIN TEN (10) DAYS after being served a copy of this order.
As to plaintiff's other claims against Mitchell, it is by no means clear that plaintiff will ultimately prevail on the merits. Construing the complaint liberally in favor of the plaintiff, however, this court concludes that plaintiff has made sufficient allegations against OFFICER LORETTA MITCHELL to withstand the frivolity review. Accordingly, it is hereby ORDERED AND DIRECTED that service be made as provided by law upon OFFICER LORETTA MITCHELL, 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, 28 U.S.C. § 1915, and the Prison Litigation Reform Act.
It is further ORDERED AND DIRECTED that a copy of this order be served upon plaintiff's custodian, if any.
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.DIRECTIONS TO CUSTODIAN OF PLAINTIFF
Following the payment of the required initial partial filing fee or the waiving of the payment of same, the Warden of the institution wherein plaintiff is incarcerated, or the Sheriff of any county wherein he is held in custody, and any successor custodians, shall each month cause to be remitted to the Clerk of this court twenty percent (20%) of the preceding month's income credited to plaintiff's account at said institution until the $350.00 filing fee has been paid in full. In accordance with provisions of the Prison Litigation Reform Act, plaintiff's custodian is hereby authorized to forward payments from the prisoner's account to the Clerk of Court each month until the filing fee is paid in full, provided the amount in the account exceeds $10.00.
IT IS FURTHER ORDERED AND DIRECTED that collection of monthly payments from plaintiff's trust fund account shall continue until the entire $350.00 has been collected, notwithstanding the dismissal of plaintiff's lawsuit or the granting of judgment against him prior to the collection of the full filing fee.
PLAINTIFF'S OBLIGATION TO PAY FILING FEE
Pursuant to provisions of the Prison Litigation Reform Act, in the event plaintiff is hereafter released from the custody of the State of Georgia or any county thereof, he shall remain obligated to pay any balance due on the filing fee in this proceeding until said amount has been paid in full; plaintiff shall continue to remit monthly payments as required by the Prison Litigation Reform Act. Collection from the plaintiff of any balance due on the filing fee by any means permitted by law is hereby authorized in the event plaintiff is released from custody and fails to remit payments. In addition, plaintiff's complaint is subject to dismissal if he has the ability to make monthly payments and fails to do so.
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 AND RECOMMENDED.