Coggins v. Harrelson (MAG+)

Filing 4

ORDER and REPORT AND RECOMMENDATIONS re 1 Complaint filed by Gene Coggins; granting 2 MOTION for Leave to Proceed in forma pauperis filed by Gene Coggins; it is the Recommendation of the Mag Judge that this action be dismissed with prejudice purs uant to 28 USC 1915(e)(2)(B)(i) and (ii); The Clerk of the Court is Ordered to file the Recommendation of the Mag Judge and to serve a copy on the parties to this action; Objections to R&R due by 4/1/2009. Signed by Honorable Susan Russ Walker on 3/19/09. (vma, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION G E N E COGGINS, P la in tif f , v. D IA N E HARRELSON, D e f e n d a n t. ) ) ) ) ) ) ) ) )

C IV IL ACTION NO. 3:09cv199-WKW

O R D E R and RECOMMENDATION OF THE MAGISTRATE JUDGE P la in tif f Gene Coggins, a frequent litigator in this court,1 seeks leave pursuant to 28 U .S .C . § 1915 to proceed in forma pauperis in this action (Doc. # 2). Assuming the truth of th e averments in plaintiff's supporting financial affidavit, the document establishes economic e lig ib ility for IFP status. Because it is abundantly clear that plaintiff's claims are due to be d is m is s e d on the merits as frivolous, the court chooses ­ in this case ­ not to set a hearing to e x p lo re further the truth of plaintiff's representations to the court and his allegation of p o v e rty.2 , 3 Accordingly, it is

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Plaintiff has filed 46 cases in this court, 35 of them within the past two years.

See Coggins v. Crouch, Civil Action No. 3:09cv64-MHT (Doc. # 2, 4, 11-14) and Coggins v. Town of Jackson's Gap, 3:09cv65-WKW (Doc. # 2, 5, 6, 8, 10, 16). The Eleventh Circuit's direction to the district court in Martinez v. Kristi Kleaner's Inc., 364 F.3d 1305 (11th Cir. 2004) suggests that it may no longer be necessary to reach a motion to proceed in forma pauperis where the Clerk has docketed the case, and the court has reviewed it and has determined that the plaintiff's claims are frivolous. Id. at 1308 ("If the district court determines that Martinez is not eligible to proceed in forma pauperis, the reasons for that denial should be explained in its order. Alternatively, should the district court find the complaint frivolous, it should affirmatively indicate that conclusion for our benefit on review."); see also id. ("[B]ecause the
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ORDERED that plaintiff's motion to proceed in forma pauperis (Doc. # 2) is G R A N T E D , based solely on the face of the affidavit. Upon review of the complaint, the c o u rt concludes that this action is due to be dismissed prior to service of process under 28 U .S .C . § 1915(e)(2)(B).4 P la in tif f , proceeding pro se, brings claims against defendant Diane Harrelson. He lists h e r address is "242 High Top Circle, Jackson[']s Gap, AL 36861." (Complaint, p. 1). Plaintiff contends that Harrelson has violated his constitutional rights by refusing to vacate th e property at 242 High Top Circle. (Id. at p. 5). Plaintiff alleges that "[t]he guaranteed c o n s titu tio n a l rights for citizens to own property, leaves no legal right for any form of s q u a tte rs rights, where anyone tries to settle or take over another's land that holds a proper o r clear true title, or by virtue of a written agreement be and between the true owner." (Id. a t p. 6).

district court's order contained no explanation as to why Martinez's motion [to proceed in forma pauperis] was denied, it is unclear whether the denial was based on her failure to satisfy the poverty requirement or because her complaint was frivolous."); Cf. Burlison v. Rogers, 2008 WL 5662330, 1 (11th Cir. Aug. 29, 2008)(unpublished opinion)(without discussing the in forma pauperis motion, affirming district court's denial of motion to proceed in forma pauperis and sua sponte dismissal of § 1983 action pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)). The 1996 amendment to § 1915 allowing dismissal of a complaint on the grounds set forth in § 1915(e)(2)(B) "at any time,"arguably permits dismissal before a ruling on the IFP motion. See text of statute at n. 4, infra. However, for the sake of efficiency, the undersigned has followed the court's pre-amendment practice of addressing the IFP motion before reaching the merits in the instant case, without prejudice to any future decision to revisit this practice. The statute provides, in pertinent part: "[T]he court shall dismiss the case at any time if the court determines that . . . the action or appeal­ (i) is frivolous or malicious, (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). 2
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Plaintiff's complaint is due to be dismissed because: (1) the allegations of the c o m p la in t do not demonstrate that Harrelson is a "state actor" as required to support a claim u n d e r 42 U.S.C. § 1983;5 and (2) plaintiff declares, under penalty of perjury, that he owns n o home or real estate. (Doc. # 2, Declaration in support of motion to proceed in forma p a u p e ris , p. 3).6 Thus, even if plaintiff could allege sufficient facts to support a finding of s ta te action, any Constitutional rights that Harrelson may have violated by "squatting" on the p ro p e rty at 242 High Top Circle do not belong to plaintiff. A claim which "lacks an arguable b a s is in law or in fact" is frivolous. Nietzke v. Williams, 490 U.S. 319, 320 (1989). Plaintiff's complaint is frivolous and fails to state a claim upon which relief may be granted. Accordingly, it is the RECOMMENDATION of the Magistrate Judge that this action b e dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii).

See Focus on the Family v. Pinellas Suncoast Transit Authority, 344 F.3d 1263, 1277 (11th Cir. 2003)(setting forth tests for "determining whether the actions of a private entity are properly attributed to the state"). In a hearing conducted by United States Magistrate Judge Terry Moorer on March 2, 2009, plaintiff testified ­ under oath ­ that the home in which he lives is his wife's separate property, owned by her prior to their marriage. He further testified that the property at 242 High Top Circle is owned by the Brides of Christ Church, a corporate entity, and was transferred to the Brides of Christ in 1991. (Civil Action No. 3:09cv64-MHT, recording of hearing at approximately 9:43 a.m.). Accordingly, the court will not allow plaintiff an opportunity to amend the complaint because he cannot assert ­ consistent with Fed. R. Civ. P. 11 ­ that the property at issue in this action belongs to him. For the same reason, plaintiff's claims arising from injury to his ownership rights in 242 High Top Circle are due to be dismissed with prejudice. See Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008)(Section 1915 gives the court the "`unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.'")(citation omitted); Clark v. Maldonado, 288 Fed. Appx. 645, 646 (11th Cir. 2008)(a court may not dismiss a complaint with prejudice without first giving the plaintiff a chance to amend "if a more carefully drafted complaint might state a claim"). 3
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The Clerk of the Court is ORDERED to file the Recommendation of the Magistrate J u d g e and to serve a copy on the parties to this action. The parties are DIRECTED to file any o b je c tio n s to this Recommendation on or before April 1, 2009. Any objections filed must s p e c if ic a lly identify the findings in the Magistrate Judge's Recommendation objected to. Frivolous, conclusive or general objections will not be considered by the District Court. F a ilu re to file written objections to the proposed findings and recommendations in the M a g is tra te Judge's report shall bar the party from a de novo determination by the District C o u rt of issues covered in the report and shall bar the party from attacking on appeal factual f in d in g s in the report accepted or adopted by the District Court except upon grounds of plain e rro r or manifest injustice. Resolution Trust Co. v. Hallmark Builders, Inc., 996 F.2d 1144, 1 1 4 9 (11th Cir. 1993); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989). D o n e , this 19 th day of March, 2009.

/s / Susan Russ Walker SUSAN RUSS WALKER C H IE F UNITED STATES MAGISTRATE JUDGE

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