United States District Court, S.D. Georgia, Augusta Division
K. EFPS UNITED STATES DISTRICT JUDGE.
currently incarcerated at Augusta State Medical Prison
("ASMP") in Grovetown, Georgia, submitted to the
Court for filing a complaint brought pursuant to 42 U.S.C.
§ 1983, and he requested permission to proceed in
forma pauperis ("IFP"). (Doc. nos. 1, 2.) By
Order dated August 8, 2017, the Court denied the request to
proceed IFP and directed Plaintiff to submit the full $400.00
filing fee within twenty-one days. (Doc. no. 4.)
Specifically, the Court found there was a balance of $6,
063.18 in his prisoner trust fund account, and he had total
deposits of $9, 000.00 to his account for the past six
months. (Doc. nos. 2, 3, 4.) The Court warned Plaintiff that
failing to pay the $400.00 filing fee within twenty-one days
would result in a recommendation for dismissal of this case
without prejudice. (Doc. no. 4, p. 2.)
on Plaintiff's explanation of his difficulty requesting
prison officials deduct the filing fee from his prison trust
account, the Court then extended the deadline for paying the
full filing fee until September 15, 2017, and again warned
Plaintiff the consequence of failing to pay the fee would be
a recommendation for dismissal without prejudice.
(See doc. nos. 5, 6.) When the September 15th
deadline had passed and Plaintiff had not paid the $400.00,
the Court recommended dismissing the case without prejudice.
(Doc. no. 9.) Plaintiff objected to the recommendation for
dismissal and provided the Court with paperwork suggesting
prison officials knew about Plaintiffs obligation to pay the
filing fee but had not forwarded the fee as Plaintiff had
requested. (Doc. no. 11.)
Court's prior recommendation for dismissal was based on
the failure pay the filing fee, and Plaintiff has provided
paperwork suggesting prison officials are responsible for the
noncompliance, the Court VACATES it prior
Report and Recommendation. (Doc. no. 9.) The Court expects
prison officials will forward the $400.00 filing fee to the
Court by no later than Monday, November 6, 2017. If
the fee has not been paid by November 6th, the Court expects
the Warden at ASMP will submit a written explanation for the
delay to the Court by that same date. In any event, there is
no need to further delay the progress of this case.
Plaintiff is proceeding pro se, the Court will
provide him with some basic instructions regarding the
development and progression of this case. Initially,
Plaintiff is responsible for serving Defendants. In order to
properly request that Defendants waive personal service,
(1) obtain from the Clerk of Court an appropriate number of
(a) the notice of lawsuit and request to waive service of
summons form, and
(b) the waiver of service of summons form;
(2) complete both forms for each Defendant; and
(3) mail the completed notice form, along with a copy of the
file-stamped amended complaint and two waiver forms appended
to Federal Rule of Civil Procedure 4, to Defendants by first
class mail, with a prepaid means for returning the waiver
form, and request that each Defendant waive formal service of
the summons. Using the form appended to Rule 4, Defendants
must be informed of the consequences of waiving and not
Fed. R. Civ. P. 4(d).
must serve Defendants within ninety days from the date of
this Order, and failure to do so may result in the dismissal
of individual Defendants or the entire case. Fed.R.Civ.P.
4(m). Individuals, corporations, partnerships, and
associations have a duty to avoid unnecessary expenses of
serving the summons, and a defendant who fails to sign and
return a waiver without good cause must bear the expenses
incurred in making personal service. Fed.R.Civ.P. 4(d)(1)
& (2). A Defendant whose return of the waiver is timely
does not have to answer the complaint until sixty days after
the date Plaintiff mails the request for waiver. Fed.R.Civ.P.
4(d)(3). However, should a Defendant choose not to waive
personal service of the summons and complaint, Plaintiff is
still responsible for properly effecting personal service.
Fed.R.Civ.P. 4(c), (e).
IS ORDERED that Plaintiff shall serve upon
Defendants, or upon their 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 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.
Plaintiffs duty to cooperate fully in any discovery that may
be initiated by Defendants. 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. Defendants shall