Dasher v. Brown

• Court: District Court, S.D. Georgia
• Decided: January 27, 2023
• Docket: 6:22-cv-00021
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA STATESBORO DIVISION

TREY DALTON DASHER, ) ) Plaintiff, ) ) v. ) CV622-021 ) APRIL TODD, et al., ) ) Defendants. )

ORDER AND REPORT AND RECOMMENDATION Pro se plaintiff Trey Dalton Dasher filed this 42 U.S.C. § 1983 case alleging that she1 was subjected to excessive force while incarcerated at Chatham County Detention Center. See doc. 1. The Court previously screened her Complaint and directed her to amend it. See doc. 6. She has submitted an Amended Complaint. See doc. 7. The Court, therefore, proceeds to screen her Amended Complaint. See 28 U.S.C. § 1915A. Because the Court applies Federal Rule of Civil Procedure 12(b)(6) standards in screening a complaint pursuant to § 1915A, Leal v. Ga. Dep’t of Corr., 254 F.3d 1276, 1278-79 (11th Cir. 2001), allegations in the

1 As the Court previously noted, Dasher has stated that she identifies as “a female ‘transgender’ . . . .” See doc. 6 at 4 n. 2; see also doc. 1 at 5. Her Amended Complaint expressly states that she utilizes the feminine pronouns “her” and “she.” Doc. 7 at 2. Complaint are taken as true and construed in the light most favorable to the plaintiff. Bumpus v. Watts, 448 F. App’x 3, 4 n.1 (11th Cir. 2011).

Conclusory allegations, however, fail. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (discussing a Rule 12(b)(6) dismissal). As Dasher is proceeding

pro se, her pleadings are held to a less stringent standard than pleadings drafted by attorneys and are liberally construed. See Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011).

Dasher’s original Complaint named several defendants who are omitted from her Amended Complaint. Her original Complaint named Bulloch County Sheriff Noel Brown and Captain Kenneth Thompson.

See doc. 1 at 2. The Court’s prior Order noted that it appeared that Dasher was seeking to hold those defendants liable solely in their supervisory capacities. See doc. 6 at 2. Dasher’s Amended Complaint

omits those defendants entirely. See generally doc. 7. They should, therefore, be DISMISSED from this case. See, e.g., Dresdner Bank AG v. M/V Olympia Voyager, 463 F.3d 1210, 1215 (11th Cir. 2006) (“An

amended pleading supersedes the former pleading; the original pleading is abandoned by the amendment, and is no longer part of the pleader’s averments against his adversary.” (internal quotation marks and citations omitted)).

Dasher alleges that she was subjected to excessive force while confined at Bulloch County Jail. See doc. 7 at 5-6. She alleges that she

was placed in a room for “medical observation.” Id. at 5. She expressly alleges that she was noncompliant with several instructions from Foreman. Id. She alleges that defendant Cole “threw [her] out of [a]

chair,” and that defendants Chris and Cole,2 and another officer not named as a defendant, “slammed [her] to the ground,” and then kneeled on her neck, applying sufficient force that she lost consciousness. Id. at

7. Liberally construed, she alleges that defendants Todd and Foreman failed to intervene. Id. at 5-6 (alleging that “Todd was laughing at [her] and . . . Foreman was calling [her] a faggot[ w]hile they still had their

knees in [her] neck and back . . . .”). It is well-settled that “the unnecessary and wanton infliction of pain constitutes cruel and unusual punishment forbidden by the Eighth

Amendment.” Hudson v. McMillian, 503 U.S. 1, 5 (1992) (internal

2 Dasher’s Amended Complaint explains that “Cole” and “Chris” are defendants’ first names. See doc. 7 at 3. quotation marks, alteration, and citation omitted); see also Sears v. Roberts, 922 F.3d 1199, 1205 (11th Cir. 2019). “In considering an Eighth

Amendment excessive force claim, [the court] must consider both a subjective and an objective component: (1) whether the officials acted

with a sufficiently culpable state of mind, and (2) if the alleged wrongdoing was objectively harmful enough to establish a constitutional violation.” Johnson v. Moody, 206 F. App’x 880, 883 (11th Cir. 2006)

(internal quotation marks, alterations, and citation omitted). Moreover, officers who witness excessive force and fail to intervene may be liable for their failure. See, e.g., Jackson v. Catanzariti, 2019 WL 4874809, at

*11 (S.D. Ga. Oct. 2, 2019) (discussing law applicable to failure to intervene in excessive force cases). While Dasher’s allegations do not establish any defendant’s culpable intent or objective harm, they are

sufficient to be served upon defendants. In summary, defendants Sheriff Brown and Captain Thompson should be DISMISSED. This Report and Recommendation (R&R) is

submitted to the district judge assigned to this action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 72.3. Within 14 days of service, any party may file written objections to this R&R with the Court and serve a copy on all parties. The document should be captioned “Objections to Magistrate Judge’s Report and Recommendations.” Any

request for additional time to file objections should be filed with the Clerk for consideration by the assigned district judge.

After the objections period has ended, the Clerk shall submit this R&R together with any objections to the assigned district judge. The district judge will review the magistrate judge’s findings and

recommendation pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to timely file objections will result in the waiver of rights on appeal. 11th Cir. R. 3-1; see Symonette v. V.A. Leasing Corp.,

648 F. App’x 787, 790 (11th Cir. 2016); Mitchell v. U.S., 612 F. App’x 542, 545 (11th Cir. 2015). Since the Court approves for service Dasher’s excessive force claims

against defendants Todd, Foreman, Cole, and Chris, a copy of Plaintiff’s Complaint, doc. 1, the Court’s prior screening Order, doc. 6, her Amended Complaint, doc. 7, and a copy of this Order shall be served upon

Defendants Todd, Foreman, Cole, and Chris by the United States Marshal without prepayment of cost. The Court DIRECTS the Clerk of Court to serve a copy of this Order upon Plaintiff. The Court also provides the following instructions to the parties that will apply to the remainder of this action.

INSTRUCTIONS TO ALL DEFENDANTS IN THIS ACTION Because Plaintiff is proceeding in forma pauperis, the undersigned

directs service be effected by the United States Marshal. Fed. R. Civ. P. 4(c)(3). In most cases, the marshal will first mail a copy of the complaint to a defendant by first-class mail and request the defendant waive formal

service of summons. Fed. R. Civ. P. 4(d); Local R. 4.5. A defendant has a duty to avoid unnecessary costs of serving the summons, and any defendant who fails to comply with the request for waiver must bear the

costs of personal service unless good cause can be shown for the failure to return the waiver. Fed. R. Civ. P. 4(d). Generally, a defendant who timely returns the waiver is not required to answer the complaint until

60 days after the date the marshal sent the request for waiver. Fed. R. Civ. P. 4(d)(3). IT IS FURTHER ORDERED that any Defendant in this action is

granted leave of court to take the deposition of Plaintiff upon oral examination. Fed. R. Civ. P. 30(a)(2). Defendants are further advised the Court’s standard 140-day discovery period will commence upon the filing of the last answer. Local R. 26.1. Defendants shall ensure all discovery, including Plaintiff’s deposition and any other depositions in

the case, is completed within that discovery period. If a Defendant takes the deposition of any other person, Defendants

are ordered to comply with the requirements of Federal Rule of Civil Procedure 30. As Plaintiff will not likely attend such a deposition, the Defendant taking the deposition must notify Plaintiff of the deposition

and advise her that she may serve on that Defendant written questions Plaintiff wishes to propound to the witness, if any. Defendants shall present such questions to the witness in order and word-for-word during

the deposition. Fed. R. Civ. P. 30(c). Plaintiff must submit the questions in a sealed envelope within 10 days of the notice of deposition. INSTRUCTIONS TO PLAINTIFF

Plaintiff is charged with the responsibility of immediately informing this Court and defense counsel of any change of address during the pendency of this action. Local R. 11.1. Plaintiff’s failure to notify the

Court of a change in his address may result in dismissal of this case. IT IS FURTHER ORDERED that Plaintiff shall serve a copy of every pleading or other document submitted for consideration by the Court on each Defendant (or, if appearance has been entered by counsel, the Defendant’s attorney). Plaintiff shall include with the original paper

to be filed with the Clerk of Court a certificate stating the date on which a true and correct copy of any document was mailed to each Defendant

or the Defendant’s counsel. Fed. R. Civ. P. 5. “Every pleading shall contain a caption setting forth the name of the court, the title of the action, [and] the file number.” Fed. R. Civ. P. 10(a).

Plaintiff has the responsibility for pursuing this case. For example, if Plaintiff wishes to obtain facts and information about the case from a Defendant, Plaintiff must initiate discovery. See generally Fed. R. Civ.

P. 26 to Fed. R. Civ. P. 37. The discovery period in this case will expire 140 days after the filing of the last answer. Local R. 26.1. Plaintiff does not need the permission of the Court to begin discovery, and Plaintiff

should begin discovery promptly and complete it within this time period. Id. Discovery materials should not be filed routinely with the Clerk of Court; exceptions include: when the Court directs filing; when a party

needs such materials in connection with a motion or response, and then only to the extent necessary; and when needed for use at trial. Local R. 26.4. Interrogatories are a practical method of discovery for incarcerated persons. See Fed. R. Civ. P. 33. Interrogatories may be served only on a

party to the litigation, and, for the purposes of the instant case, this means that interrogatories should not be directed to persons or

organizations who are not named as a defendant. Interrogatories are not to contain more than 25 questions. Fed. R. Civ. P. 33(a). If Plaintiff wishes to propound more than 25 interrogatories to a party, Plaintiff

must have permission of the Court. If Plaintiff wishes to file a motion to compel, pursuant to Federal Rule of Civil Procedure 37, she should first contact the attorney for Defendants and try to work out the problem; if

Plaintiff proceeds with the motion to compel, she should also file a statement certifying that he has contacted opposing counsel in a good faith effort to resolve any dispute about discovery. Fed. R. Civ. P. 26(c),

37(a)(2)(A); Local R. 26.5. Plaintiff has the responsibility for maintaining her own records of the case. If Plaintiff loses papers and needs new copies, she may obtain

them from the Clerk of Court at the standard cost of fifty cents ($.50) per page. If Plaintiff seeks copies, she should request them directly from the Clerk of Court and is advised that the Court will authorize and require the collection of fees from her prison trust fund account to pay the cost of the copies at the aforementioned

rate of fifty cents ($.50) per page. If Plaintiff does not press this case forward, the court may dismiss

it for failure to prosecute. Fed. R. Civ. P. 41; Local R. 41.1. It is Plaintiff’s duty to cooperate in any discovery initiated by a Defendant. Upon no less than five days’ notice of the scheduled

deposition date, Plaintiff must appear and permit her deposition to be taken and must answer, under oath or solemn affirmation, any question which seeks information relevant to the subject matter of the pending

action. As the case progresses, Plaintiff may receive a notice addressed to “counsel of record” directing the parties to prepare and submit a Joint

Status Report and a Proposed Pretrial Order. A plaintiff proceeding without counsel may prepare and file a unilateral Status Report and is required to prepare and file her own version of the Proposed Pretrial

Order. A plaintiff who is incarcerated shall not be required or entitled to attend any status or pretrial conference which may be scheduled by the Court. ADDITIONAL INSTRUCTIONS TO PLAINTIFF REGARDING MOTIONS TO DISMISS AND MOTIONS FOR SUMMARY JUDGMENT

A Defendant may choose to ask the Court to dismiss this action by filing a motion to dismiss, a motion for summary judgment, or both. Under this Court’s Local Rules, a party opposing a motion to dismiss shall file and serve his response to the motion within 14 days of its service. Failure to respond shall indicate that there is no opposition to a

motion. Local R. 7.5. Therefore, if Plaintiff fails to respond to a motion to dismiss, the Court will assume that she does not oppose the Defendant’s motion. Plaintiff’s case may be dismissed for lack of

prosecution if Plaintiff fails to respond to a motion to dismiss. Plaintiff’s response to a motion for summary judgment must be filed within 21 days after service of the motion. Local R. 7.5, 56.1. The failure

to respond to such a motion shall indicate that there is no opposition to the motion. Furthermore, each material fact set forth in a Defendant’s statement of material facts will be deemed admitted unless specifically

controverted by an opposition statement. If a Defendant files a motion for summary judgment, Plaintiff will have the burden of establishing the existence of a genuine dispute as to any material fact in this case. That burden cannot be met by reliance on the conclusory allegations contained within the complaint. If a Defendant’s motion for summary judgment is supported by affidavit, Plaintiff must file counter-affidavits if she wants

to contest Defendant’s statement of the facts. If Plaintiff fails to file opposing affidavits setting forth specific facts showing that there is a genuine dispute for trial, any factual assertions made in the Defendant’s affidavits will be accepted as true and summary judgment may be entered against Plaintiff pursuant to Federal Rule of Civil Procedure 56. SO ORDERED, this 27th day of January, 2023.

UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OF GEORGIA