IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION

TEZE CALDWELL, : : Plaintiff, : : V. : : NO. 4:22-cv-00064-CDL-MSH Deputy JOHN MARR, : : Defendant. : _________________________________ :

ORDER Plaintiff Teze Caldwell, a prisoner in the Riverbend Correctional Facility in Milledgeville, Georgia, has filed a complaint under

. Compl., ECF No. 1; Signed Compl., ECF No. 3. Plaintiff also filed a motion for leave to proceed in forma pauperis. Mot. for Leave to Proceed In Forma Pauperis, ECF No. 6. Thereafter, Plaintiff’s motion to proceed in forma pauperis was granted, and Plaintiff was ordered to pay an initial partial filing fee, Order, ECF No. 7, which he has now paid. Thus, Plaintiff’s complaint is ripe for preliminary review. On that review, Plaintiff will be permitted to proceed for further factual development on his excessive force claim against Defendant Deputy John Marr. PRELIMINARY REVIEW OF PLAINTIFF’S COMPLAINT I. Standard of Review Because Plaintiff is a prisoner “seeking redress from a governmental entity or [an] officer or employee of a governmental entity,” the Court is required to conduct a preliminary review of his complaint. See 28 U.S.C. § 1915A(a) (requiring the screening of prisoner cases) &

(e) (regarding in forma pauperis proceedings). When performing this review, the district court must accept all factual allegations in the

complaint as true. Brown v. Johnson,

(11th Cir. 2004). Pro se pleadings are also “held to a less stringent standard than pleadings drafted by attorneys,” and thus, pro se claims are “liberally construed.” Tannenbaum v. United States,

(11th Cir. 1998). Still, the Court must dismiss a prisoner complaint if it “(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. §1915A(b).

A claim is frivolous if it “lacks an arguable basis either in law or in fact.” Miller v. Donald,

(11th Cir. 2008) (internal quotation marks omitted). The Court may dismiss claims that are based on “indisputably meritless legal” theories and “claims whose factual contentions are clearly baseless.”

(internal quotation marks omitted). A complaint fails to state a claim if it does not include “sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

(2009) (quoting Bell Atl. Corp. v. Twombly,

(2007)). The factual allegations in a complaint “must be enough to raise a right to relief above the speculative level” and cannot “merely create[] a suspicion [of] a legally cognizable right of action.” Twombly,

(first alteration in original). In other words, the

complaint must allege enough facts “to raise a reasonable expectation that discovery will reveal evidence” supporting a claim.

. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 2 U.S. at 678. To state a claim for relief under § 1983, a plaintiff must allege that (1) an act or

omission deprived him of a right, privilege, or immunity secured by the Constitution or a statute of the United States; and (2) the act or omission was committed by a person acting under color of state law. Hale v. Tallapoosa Cty.,

(11th Cir. 1995). If a litigant cannot satisfy these requirements or fails to provide factual allegations in support of his claim or claims, the complaint is subject to dismissal. See Chappell v. Rich,

(11th Cir. 2003).

II. Factual Allegations In his complaint, Plaintiff asserts that, on February 20, 2020, Officer John Marr performed a “pit maneuver” on Plaintiff’s car, causing the car to flip twelve times with Plaintiff inside the vehicle. Compl. 3, ECF No. 3. Once the vehicle stopped, Officer Marr pulled Plaintiff out of the car and punched Plaintiff in the face after putting Plaintiff

in handcuffs.

Marr broke Plaintiff’s nose and caused his face to swell.

Plaintiff filed this complaint against Officer Marr for excessive force.

“The Fourth Amendment’s freedom from unreasonable searches and seizures encompasses the plain right to be free from the use of excessive force in the course of an arrest.” Lee v. Ferraro,

(11th Cir. 2002). Although the right to use

some degree of force comes with the right to make an arrest, the question is whether the force used was reasonable, which is judged on a case-by-case basis. Brown v. City of Huntsville, Ala.,

(11th Cir. 2010). 3 Plaintiff does not explain the circumstances under which Officer Marr performed the pit maneuver, and on the face of the complaint, it appears possible that use of this type

of force was unreasonable. Moreover, Plaintiff states that he was handcuffed when Marr punched Plaintiff in the face, which also may have constituted an unreasonable amount of force. Based on these allegations, Plaintiff will be permitted to proceed for further factual development on his claim that Officer Marr used excessive force against him on this occasion. ORDER FOR SERVICE

For those reasons discussed above, it is hereby ORDERED that service be made on DEFENDANT OFFICE JOHN MARR, and that he file an Answer, or other response as appropriate under the Federal Rules,

, and the Prison Litigation Reform Act. Defendant is also reminded of the duty to avoid unnecessary service expenses, and the possible imposition of expenses for failure to waive service.

DUTY TO ADVISE OF ADDRESS CHANGE During this action, all parties shall at all times keep the Clerk of this Court and all opposing attorneys and/or parties advised of their current address. Failure to promptly advise the Clerk of any change of address may result in the dismissal of a party’s pleadings. DUTY TO PROSECUTE ACTION

Plaintiff must diligently prosecute his Complaint or face the possibility that it will be dismissed under Rule 41(b) for failure to prosecute. Defendant is advised that he is expected to diligently defend all allegations made against him and to file timely dispositive 4 motions as hereinafter directed. This matter will be set down for trial when the Court determines that discovery has been completed and that all motions have been disposed of

or the time for filing dispositive motions has passed. FILING AND SERVICE OF MOTIONS, PLEADINGS, AND CORRESPONDENCE

It is the responsibility of each party to file original motions, pleadings, and correspondence with the Clerk of Court. A party need not serve the opposing party by mail if the opposing party is represented by counsel. In such cases, any motions, pleadings, or correspondence shall be served electronically at the time of filing with the Court. If any party is not represented by counsel, however, it is the responsibility of each opposing party to serve copies of all motions, pleadings, and correspondence upon the unrepresented party and to attach to said original motions, pleadings, and correspondence filed with the Clerk of Court a certificate of service indicating who has been served and where (i.e., at what address), when service was made, and how service was accomplished (i.e., by U.S. Mail, by personal service, etc.). DISCOVERY

Plaintiff shall not commence discovery until an answer or dispositive motion has been filed on behalf of Defendants from whom discovery is sought by Plaintiff. Defendants shall not commence discovery until such time as an answer or dispositive motion has been filed. Once an answer or dispositive motion has been filed, the parties are authorized to seek discovery from one another as provided in the Federal Rules of Civil

5 Procedure. Plaintiff’s deposition may be taken at any time during the time period hereinafter set out, provided that prior arrangements are made with his custodian. Plaintiff

is hereby advised that failure to submit to a deposition may result in the dismissal of his lawsuit under Fed. R. Civ. P. 37 of the Federal Rules of Civil Procedure. IT IS HEREBY ORDERED that discovery (including depositions and the service of written discovery requests) shall be completed within 90 days of the date of filing of an answer or dispositive motion by Defendants (whichever comes first) unless an extension is otherwise granted by the Court upon a showing of good cause therefor or a protective

order is sought by Defendants and granted by the Court. This 90-day period shall run separately as to each Defendant beginning on the date of filing of each Defendant’s answer or dispositive motion (whichever comes first). The scheduling of a trial may be advanced upon notification from the parties that no further discovery is contemplated or that discovery has been completed prior to the deadline.

Discovery materials shall not be filed with the Clerk of Court. No party shall be required to respond to any discovery not directed to him or served upon him by the opposing counsel/party. The undersigned incorporates herein those parts of the Local Rules imposing the following limitations on discovery: except with written permission of the Court first obtained, INTERROGATORIES may not exceed TWENTY-FIVE (25) to

each party, REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS under Rule 34 of the Federal Rules of Civil Procedure may not exceed TEN (10) requests to each party, and REQUESTS FOR ADMISSIONS under Rule 36 of the Federal Rules of Civil 6 Procedure may not exceed FIFTEEN (15) requests to each party. No party is required to respond to any request which exceed these limitations.

REQUESTS FOR DISMISSAL AND/OR JUDGMENT Dismissal of this action or requests for judgment will not be considered by the Court in the absence of a separate motion accompanied by a brief/memorandum of law citing supporting authorities. Dispositive motions should be filed at the earliest time possible, but no later than one hundred-twenty (120) days from when the discovery period begins. SO ORDERED, this 3rd day of August, 2022.

/s/ Stephen Hyles UNITED STATES MAGISTRATE JUDGE

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