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Wilcox v. Selph

United States District Court, S.D. Georgia, Dublin Division

September 1, 2017

MATTHEUS ANTUAN WILCOX, Plaintiff,
v.
BRYAN SELPH, Magistrate Judge; JEFFERY DEAL, Telfair County Sheriff's Department Drug Investigator; and TELFAIR COUNTY SHERIFF'S DEPARTMENT, Defendants.

          ORDER

          BRIAN K. EPPS, UNITED STALES MAGISTRATE JUDGE

         Plaintiff, currently incarcerated at the Wheeler County Jail in Alamo, Georgia, commenced the above-captioned case pursuant to 42 U.S.C. § 1983 regarding events allegedly occurring in Telfair County, Georgia. Because he is proceeding in forma pauperis (“IFP”), Plaintiff's amended complaint must be screened to protect potential defendants. Phillips v. Mashburn, 746 F.2d 782, 785 (11th Cir. 1984); Al-Amin v. Donald, 165 F. App'x 733, 736 (11th Cir. 2006) (per curiam).

         I. SCREENING OF THE AMENDED COMPLAINT

         Plaintiff names Magistrate Judge Bryan Selph, Telfair County Drug Investigator Jeffrey Deal, and Telfair County Sheriff's Department as Defendants. Taking all of Plaintiff's allegations as true, as the Court must for purposes of the present screening, the facts are as follows.

         On February 7, 2017 at around 10:30 a.m., Defendant Deal arrested Plaintiff at the Telfair County Courthouse. (Doc. no. 1, p. 5.) Without being read his rights or having a warrant issued, Plaintiff was sent straight to Coffee County Jail to be housed. (Id.) Plaintiff was never given an initial appearance within seventy-two hours as required by O.C.G.A. § 17-4-26, and Judge Selph held a commitment hearing for Plaintiff without notifying him of the time or place. (Id.) Plaintiff seeks monetary compensation for the “excessive days [he's] spending in jail.” (Id. at 6.)

         Liberally construing Plaintiff's allegations in his favor and granting him the benefit of all reasonable inferences to be derived from the facts alleged, the Court finds Plaintiff has arguably stated a Fourth Amendment claim against Defendant Deal. See Powell v. Nevada, 511 U.S. 79, 83 (1994) (holding failure to present defendant for probable cause determination within forty-eight hours presumptively violates Fourth Amendment); Cty. of Riverside v. McLaughlin, 500 U.S. 44, 56-59 (1991) (same). In a companion Report and Recommendation, the Court recommends dismissal of Plaintiff's claims against Magistrate Judge Bryan Selph and the Telfair County Sheriff's Office.

         II. INSTRUCTIONS

         IT IS HEREBY ORDERED that service of process shall be effected on Defendant Deal. The United States Marshal shall mail a copy of the amended complaint (doc. no. 4) and this Order by first-class mail and request that the defendants waive formal service of the summons. Fed.R.Civ.P. 4(d). Individual defendants have a duty to avoid unnecessary costs of serving the summons, and if a defendant fails to comply with the request for waiver, the defendant must bear the costs of personal service unless good cause can be shown for failure to return the waiver. Fed.R.Civ.P. 4(d)(2). A defendant whose return of the waiver is timely does not have to answer the amended complaint until sixty days after the date the Marshal mails the request for waiver. Fed.R.Civ.P. 4(d)(3). However, service must be effected within 90 days of the date of this Order, and the failure to do so may result in the dismissal of any unserved defendant or the entire case. Fed.R.Civ.P. 4(m). Plaintiff is responsible for providing sufficient information for the Marshal to identify and locate the defendant to effect service.

         IT IS FURTHER ORDERED that Plaintiff shall serve upon the defendant, or upon his defense attorney if appearance has been entered by counsel, a copy of every further pleading or other document submitted to the Court. Plaintiff shall include with the papers to be filed a certificate stating the date a true and correct copy of any document was mailed to the defendants or their counsel. Fed.R.Civ.P. 5; Loc. R. 5.1. 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). Any paper received by a District Judge or Magistrate Judge that has not been properly filed with the Clerk of Court or that fails to include a caption or certificate of service will be returned.

         It is Plaintiff's duty to cooperate fully in any discovery that may be initiated by the defendant. Upon being given at least five days notice of the scheduled deposition date, Plaintiff shall appear and permit his deposition to be taken and shall answer, under oath and solemn affirmation, any question that seeks information relevant to the subject matter of the pending action. Failing to answer questions at the deposition or giving evasive or incomplete responses to questions will not be tolerated and may subject Plaintiff to severe sanctions, including dismissal of this case. The defendant shall ensure that Plaintiff's deposition and any other depositions in the case are taken within the 140-day discovery period allowed by this Court's Local Rules.

         While this action is pending, Plaintiff shall immediately inform this Court and opposing counsel of any change of address. Failure to do so will result in dismissal of this case.

         Plaintiff must pursue this case; if Plaintiff does not press the case forward, the Court may dismiss it for want of prosecution. Fed.R.Civ.P. 41; Loc. R. 41.1. If Plaintiff wishes to obtain facts and information about the case from the defendants, Plaintiff must initiate discovery. See generally Fed.R.Civ.P. 26 through 37 (containing the rules governing discovery and providing for the basic methods of discovery). Plaintiff should begin discovery promptly and complete it within four months after the filing of the last answer of a defendant named in the amended complaint screened herein.

         Interrogatories are a practical method of discovery for pro se litigants. See Fed.R.Civ.P. 33. Interrogatories shall not contain more than twenty-five questions. Id. Plaintiff must have the Court's permission to propound more than one set of interrogatories to a party. Discovery materials should not be filed routinely with the Clerk of the 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. If Plaintiff wishes to file a motion to compel pursuant to Fed.R.Civ.P. 37, he should first contact the attorney for the defendant 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. Loc. R. 26.5.

         Plaintiff must maintain a set of records for the case. If papers are lost and new copies are required, these may be obtained from the Clerk of the ...


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