Harwood v. Wynn et al, No. 5:2010cv00411 - Document 4 (M.D. Ga. 2010)
Court Description: ORDER granting 2 motion to proceed IFP and for service upon defendant Wynn, REPORT AND RECOMMENDATION to dismiss defendants Toole and Georgia Department of Corrections re 1 Complaint filed by Phillip Anthony Harwood () Ordered by U.S. Mag Judge Charles H Weigle on 11/9/10. (dcp)
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Harwood v. Wynn et al Doc. 4 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION : : : Plaintiff : : VS. : : EVELYN WYNN; : ROBERT TOOLE; : GEORGIA DEPT. OF CORRECTIONS, : : : Defendants : _____________________________________ PHILLIP ANTHONY HARWOOD, NO. 5:10-CV-411 (CAR) ORDER & RECOMMENDATION Plaintiff PHILLIP ANTHONY HARWOOD, an inmate at Ware State Prison in Waycross, Georgia, has filed a pro se civil rights complaint under 42 U.S.C. § 1983. Plaintiff also seeks leave to proceed without prepayment of the $350.00 filing fee or security therefor pursuant to 28 U.S.C. § 1915(a). Based on plaintiff’s submissions, the Court finds that plaintiff is unable to prepay the filing fee. Accordingly, the Court GRANTS plaintiff’s motion to proceed in forma pauperis and waives the initial partial filing fee pursuant to 28 U.S.C. § 1915(b)(1). Plaintiff is nevertheless obligated to pay the full filing fee, as is directed later in this Order and Recommendation. The Clerk of Court is directed to send a copy of this Order and Recommendation to the business manager of the Ware State Prison. I. STANDARD OF REVIEW Pursuant to 28 U.S.C. § 1915A(a), a federal court is required to conduct an initial screening of a prisoner complaint “which seeks redress from a governmental entity or officer or employee of a governmental entity.” Section 1915A(b) requires a federal court to dismiss a prisoner complaint Dockets.Justia.com that is: (1) “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.” A claim is frivolous when it appears from the face of the complaint that the factual allegations are “clearly baseless” or that the legal theories are “indisputably meritless.” Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993). A complaint fails to state a claim when it does not include “enough factual matter (taken as true)” to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests[.]” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (noting that “[f]actual allegations must be enough to raise a right to relief above the speculative level,” and that the complaint “must contain something more . . . than … a statement of facts that merely creates a suspicion [of] a legally cognizable right of action”) (internal quotations and citations omitted); see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (explaining that “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice”). In making the above determinations, all factual allegations in the complaint must be viewed as true. Brown v. Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004). Moreover, “[p]ro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). In order 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 County, 50 F.3d 1579, 1581 (11th Cir. 1995). If a litigant cannot satisfy 2 these requirements, or fails to provide factual allegations in support of his claim or claims, then the complaint is subject to dismissal. See Chappell v. Rich, 340 F.3d 1279, 1282-84 (11th Cir. 2003) (affirming the district court’s dismissal of a § 1983 complaint because the plaintiff’s factual allegations were insufficient to support the alleged constitutional violation). See also 28 U.S.C. 1915A(b) (dictating that a complaint, or any portion thereof, that does not pass the standard in § 1915A “shall” be dismissed on preliminary review). II. STATEMENT AND ANALYSIS OF CLAIMS Plaintiff states that on April 7, 2010 he gave Officer Wynn an envelope that was addressed to the Georgia Supreme Court and that contained his petition for certiorari. Plaintiff has provided an exhibit that shows he did request indigent postage for this “special mailing” on April 7, 2010. Plaintiff states that Officer Wynn told him she placed the envelope in the mail on April 7, 2010. Plaintiff alleges that the petition was due in the Georgia Supreme Court by April 12, 2010. Plaintiff received notice that the Court did not receive the petition for certiorari until April 14, 2010 and it was, therefore, dismissed as untimely. Plaintiff has provided an exhibit that shows the envelope containing the petition for certiorari was postmark dated April 13, 2010; as opposed to April 7, 2010. Plaintiff claims that Officer Wynn held his legal mail from April 7, 2010 until April 13, 2010 and this delay caused his petition for certiorari to be dismissed as untimely. In addition to naming Officer Wynn as a defendant, plaintiff has named the Georgia Department of Corrections. However, the State of Georgia and its agencies are immune from suit under the Eleventh Amendment. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 3 (1989); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984). The Georgia Department of Corrections is subject to dismissal on this ground. Plaintiff has also named Warden Robert Toole in the heading of his complaint, but has made no allegations against him in the body of the complaint. The United States Court of Appeals for the Eleventh Circuit has held that a district court properly dismisses a defendant when a prisoner, other than naming the defendant in the caption of the complaint, fails to state any allegations that connect the defendant with any alleged constitutional violation. Douglas v. Yates, 535 F.3d 1316, 1322 (11th Cir. 2008) (citing Pamel Corp. v. P.R. Highway Auth., 621 F.2d 33, 36 (1st Cir. 1980)(explaining that “[w]hile [the Court does] not require technical niceties in pleading, we must demand that the complaint state with some minimal particularity how overt acts of the defendant caused a legal wrong”). Warden Toole is subject to dismissal on this ground alone. Presumably plaintiff named Robert Toole because he is the warden at Wilcox State Prison. However, to any extent that plaintiff is attempting to hold Warden Toole responsible for the actions of his employees at Wilcox State Prison, it is well settled that a plaintiff cannot prevail under 42 U.S.C. § 1983 based on a theory of respondeat superior or supervisory liability. Rogers v. Evans, 792 F.2d 1052 (11th Cir. 1986); H.C. by Hewett v. Jarrard, 786 F.2d 1080 (11th Cir. 1986). Instead the plaintiff must show that the supervisor personally participated in the alleged constitutional violation or that there is a causal connection between the actions of the supervising official and the alleged constitutional deprivation. H.C. by Hewett, 786 F.2d at 1086-87. “The causal connection can be established when a history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged deprivation, and he fails to do so. The deprivations that constitute 4 widespread abuse sufficient to notify supervising officials must be obvious, flagrant, rampant and of continued duration, rather than isolated occurrences.” Brown v. Crawford, 906 F.2d 667, 671 (11th Cir. 1990). Plaintiff does not maintain that Robert Toole was personally involved in any alleged constitutional violation. Moreover, plaintiff’s assertions do not establish the causal connection necessary to hold this defendant responsible for plaintiff’s alleged denial of access to the courts. It is therefore RECOMMENDED that both the Georgia Department of Corrections and Warden Robert Toole be DISMISSED from this action. Pursuant to 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 fourteen (14) days after being served a copy of this Order. At this stage in the litigation, the Court cannot find that plaintiff’s claim against Officer Evelyn Wynn is wholly frivolous. Therefore, this claim shall go forward against this one defendant. It is hereby ORDERED that service be made against defendant 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. Defendant is 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 at all times keep the clerk of this court and all opposing attorneys and/or parties advised of their current address. Failure to promptly advise 5 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 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 M OTIONS, 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 discovery 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, discovery 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 6 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 (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 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 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 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: INTERROGATORIES except with written permission of the court first obtained, may not exceed TWENTY-FIVE (25) to each party, PRODUCTION OF DOCUMENTS AND THINGS REQUESTS FOR under Rule 34 of the FEDERAL RULES PROCEDURE may not exceed TEN (10) requests to each party, and OF CIVIL 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 DISM ISSAL AND/OR JUDGM ENT 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 7 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. 8 ELECTION TO PROCEED BEFORE THE UNITED STATES M AGISTRATE 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 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. Upon receipt 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, this 9th day of November, 2010. s/ Charles H. Weigle Charles H. Weigle United States Magistrate Judge lnb 9
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