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Upshaw v. Watts

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

September 1, 2017

TODD UPSHAW, Plaintiff,
v.
JOHN WATTS, Tier II OIC, Telfair State Prison; BARABARA GRANT, Unit Manager; and BEASLEY, Lieutenant, [1]Defendants.

          ORDER

          BRIAN K. EPPS, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, currently incarcerated at Telfair State Prison (“TSP”) in Helena, Georgia, commenced the above-captioned case pursuant to 42 U.S.C. § 1983. Because he is proceeding 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).

         I. SCREENING OF THE AMENDED COMPLAINT

         Plaintiff names as Defendants (1) John Watts, Tier II Officer in Charge; (2) Barbara Grant, Unit Manager; and (3) Beasley, Lieutenant. (Doc. no. 1, pp. 1, 8.) Taking all of Plaintiff's factual allegations as true, as the Court must for purposes of the present screening, the facts are as follows.

         On May 10, 2017, Plaintiff was transferred to Augusta State Medical Prison (“ASMP”) to examine what had been diagnosed as a pinched nerve. (Id. at 5.) Two ASMP doctors ran several tests, including shocking his veins with two prongs of a rectangular device and inserting a needle into various places on his left arm and neck. (Id. at 8.) After a considerable amount of time, Plaintiff was transferred back to TSP. (Id. at 9.)

         When first transferred to TSP, Plaintiff was housed in Tier II Unit E-2. (Id.) While there, he heard various threats and references to assaults regarding the F-building. (Id.) In particular, Plaintiff was told by fellow inmates “Wait until we get back to F-building, we gone have plenty of yard, ” and “we don't have to keep talking, we'll see once we get on the yard in F-building.” (Id.) When Plaintiff was transferred to F-1 building, Plaintiff was afraid to go outside for recreation because of the aforementioned threats and the compromised nature of the recreation yard. (Id.) Inmates regularly pick the locks on the cages in the yard and assault fellow inmates, which has caught the attention of guards on three to four different occasions. (Id.) Because of these dangerous conditions, Plaintiff has not ventured outside of his cell for recreation in 170 days. (Id. at 10.)

         On March 30, 2017, Plaintiff appealed his Phase Three plus extension to remain housed in Tier II, but to date has not received a decision regarding this appeal. (Id.) Plaintiff also appealed his March 20, 2017 Phase hearing, but has not received a decision regarding that appeal either. (Id. at 11.) However, Plaintiff attaches a reviewed appeal form in which Warden Hall “concur[s] with committee” regarding Plaintiff's phase classification. (Id. at 14.)

         On June 2, 2017, Plaintiff received two disciplinary reports. (Id. at 11.) Defendant Beasley held a disciplinary hearing regarding these reports on June 20, 2017, during which Plaintiff informed him of several deficiencies in the hearing process. (Id.) Defendant Beasley apparently conducted the hearing anyway, and refused to help Plaintiff figure out how to appeal his decision. (Id.) Furthermore, to date, Defendant Beasley has not provided Plaintiff with the basis for his finding of guilt. (Id.)

         Finally, Plaintiff contends the law library at TSP does not carry the Georgia Administrative Code as part of its database. (Id.)

         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 an Fourteenth Amendment due process claim against Defendant Beasley for failing to provide Plaintiff with a written basis for his finding of guilt. See O'Bryant v. Finch, 637 F.3d 1207, 1213 (11th Cir. 2011) (holding prisoners must be given written statement by factfinder outlining evidence relied upon and reasons for disciplinary action). In a companion Report and Recommendation, the Court recommends dismissal of Plaintiff's transfer, deliberate indifference, appeal, and access to courts claims against all other Defendants.

         II. INSTRUCTIONS

         IT IS HEREBY ORDERED that service of process shall be effected on Defendant Beasley. The United States Marshal shall mail a copy of the amended complaint (doc. no. 10) 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 ...


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