Montgomery-Harbin v. Wilcher

• Court: District Court, S.D. Georgia
• Decided: November 6, 2023
• Docket: 4:23-cv-00229
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION

MICHAEL ) MONTGOMERY-HARBIN, ) ) Plaintiff, ) ) v. ) CV423-229 ) SHERIFF JOHN T. ) WILCHER, et al., ) ) Defendants. ) ORDER AND REPORT AND RECOMMENDATION Pro se plaintiff Michael Montgomery-Harbin filed this 42 U.S.C. § 1983 Complaint alleging that he is currently detained without any legal cause. See generally doc. 1. The Court granted him leave to proceed in forma pauperis. Doc. 4. After an extension, see doc. 8, he returned the required forms, docs. 9 & 10. The Court, therefore, proceeds to screen his Complaint pursuant to 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 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 Montgomery-Harbin is proceeding pro se, his 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). To the extent that Montgomery-Harbin names Chatham County

Detention Center as a defendant, see doc. 1 at 1, his claims should be DISMISSED. As this Court has explained, “the Chatham County Detention Center is not an entity subject to suit.” Meyers v. Chatham

Cnty. Det. Ctr., 2022 WL 1215640, at *1 (S.D. Ga. Apr. 25, 2022). Since the Detention Center itself is not an entity subject to suit, it should be dismissed.

Montgomery-Harbin’s allegations are somewhat vague. He alleges that officers of the Chatham County Sheriff’s Office “came and got [him] from Coffee Corrections,” in March 2023. See doc. 1 at 5. He was taken

to Chatham County Detention Center and was ultimately brought before the Honorable Penny Haas Freesemann, a Chatham County Superior Court judge, “who had trouble learning why [he] was being held[, and] finding no reason for [his] incarceration . . . gave [him] a certificate of discharge . . . .” Id. He alleges that, but for Sheriff’s Department

employees, he “would have been released . . . on 25 March, 2023.” Id. Based on Montgomery-Harbin’s most recent filings, it appears that he

remained incarcerated at Chatham County Detention Center as recently as October 26, 2023. See doc. 10 at 1. He seeks $250,000 in damages. Doc. 1 at 6.

Although the precise nature of the proceedings against Montgomery-Harbin, if any, are unclear, his allegations charitably implicate a claim for false imprisonment. “False arrest and false

imprisonment overlap; the former is a species of the latter.” Wallace v. Kato, 549 U.S. 384, 388 (2007). “[A] federal . . . claim for false arrest requires the plaintiff to show the absence of probable cause at the time

of the arrest.” Hesed-El v. McCord, 829 F. App’x 469, 472 (11th Cir. 2020). A § 1983 claim for false imprisonment is “based on a detention pursuant to that arrest [that lacked probable cause].” Ortega v.

Christian, 85 F.3d 1521, 1526 (11th Cir. 1996); see also Wallace, 549 U.S. at 389 (“[F]alse imprisonment consists of detention without legal process.”). As the Eleventh Circuit has explained: A § 1983 claim of false imprisonment requires a showing of common law false imprisonment and a due process violation under the Fourteenth Amendment. See Cannon v. Macon County, 1 F.3d 1558, 1562-63 (11th Cir. 1993), modified on other grounds, 15 F.3d 1022 (1994). The elements of common law false imprisonment are an intent to confine, an act resulting in confinement, and the victim's awareness of confinement. See id. at 1562 n. 3. The Fourteenth Amendment Due Process Clause includes the “right to be free from continued detention after it was or should have been known that the detainee was entitled to release.” Id. at 1563; West v. Tillman, 496 F.3d 1321, 1327 (11th Cir.2007) (per curiam). Campbell v. Johnson, 586 F.3d 835, 840 (11th Cir. 2009). “[F]alse imprisonment[, or false arrest,] ends once the victim becomes held pursuant to such process—when, for example, he is bound over by a magistrate or arraigned on charges.” Wallace, 549 U.S. at 389; see also White v. Hiers, 652 F. App’x 784, 786 (11th Cir. 2016). Montgomery- Harbin’s allegation that he is detained by the Chatham County Sheriff despite what appears to be a judge’s determination that there was no basis for his detention and order that he be “discharged” is sufficient, for screening purposes, to allege a false imprisonment claim.1

1 To be sure, it is difficult to discern a specific allegation of Sheriff Wilcher’s intent to confine Montgomery-Harbin. See doc. 1 at 5. However, any defect in Montgomery- Harbin’s pleading can be addressed by Defendant after service. Since the Court approves for service Montgomery-Harbin’s false imprisonment claim against Sheriff Wilcher, a copy of Plaintiff’s

Complaint, doc. 1, and a copy of this Order and Report and Recommendation shall be served upon Sheriff Wilcher 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 him that he 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, he should first

contact the attorney for Defendants and try to work out the problem; if Plaintiff proceeds with the motion to compel, he 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 his own records of the case. If Plaintiff loses papers and needs new copies, he may obtain

them from the Clerk of Court at the standard cost of fifty cents ($.50) per page. If Plaintiff seeks copies, he should request them directly from the Clerk of Court and is advised that the Court will

authorize and require the collection of fees from his 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 his 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 his 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 his 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 he 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 he 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.

The Court must also address Montgomery-Harbin’s filing fee. Based on the financial information available, it appears that Montgomery-Harbin had no average monthly deposits to or balance in his prison trust account during the six months before he filed the Complaint. See doc. 1 at 1. He, therefore, does not owe an initial partial

filing fee. See 28 U.S.C. § 1915(b)(1) (requiring an initial fee assessment “when funds exist,” under a specific 20 percent formula). Plaintiff’s

custodian (or designee) shall further set aside 20 percent of all future deposits to his account, then forward those funds to the Clerk each time the set aside amount reaches $10.00, until the balance of the Court’s

$350.00 filing fee has been paid in full. In the event that plaintiff is transferred to another facility, his present custodian shall forward a copy of this Order and all financial information concerning payment of the

filing fee and costs in this case to his new custodian. The balance due from plaintiff shall be collected by the custodian at all future facilities in accordance with the terms of this Order. 2

2 The Clerk is DIRECTED to send this Order to plaintiff’s account custodian immediately, as this payment directive is nondispositive within the meaning of Fed. R. Civ. P. 72(a), so no Rule 72(b) adoption is required. In the event plaintiff is transferred to another institution, his present custodian shall forward a copy of this Order and all financial information concerning payment of the filing fee and costs in this case to plaintiff's new custodian. The balance due from plaintiff shall be collected by the custodian at his next institution in accordance with the terms of the payment directive portion of this Order. In summary, Montgomery-Harbin’s claims against Chatham County Detention Center should be DISMISSED. His false arrest claim

against Sheriff Wilcher is approved for service, subject to the instructions above. Finally, the Court notes that the District Judge’s Order

concerning assignment of this case to a United States magistrate judge, doc. 3, was returned as undeliverable, doc. 5. Since the failure to deliver that order appears to have been a mistake, as subsequent correspondence

has reached Montgomery-Harbin at the same address, the Clerk is DIRECTED to resend the District Judge’s Order, doc. 3, along with this Order and Report and Recommendation. Because it was clear that

Montgomery-Harbin had not received the Order before the deadline for him to comply had expired, see docs. 3 & 5, a retroactive extension of that deadline is appropriate, see, e.g., Fed. R. Civ. P. 6(b)(1)(A). Accordingly,

the Court, nunc pro tunc to August 25, 2023, extends Montgomery- Harbin’s deadline to comply with the District Judge’s Order until November 21, 2023.

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 recommendations pursuant to 28 U.S.C. § 686(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. United States, 612 F. App’x 542, 545 (11th Cir. 2015). SO ORDERED AND REPORTED AND RECOMMENDED, this 6th day of November, 2023. Asigho~A lie CHRISTOPHER L. RAY UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OF GEORGIA