ROACH v. EMMONS

Filing 7

ORDER granting 6 Motion for Leave to Proceed in forma pauperis. ; REPORT AND RECOMMENDATION it is RECOMMENDED that Plaintiff's complaint be DISMISSED WITHOUT PREJUDICE for failure to state a claim. Ordered by US MAGISTRATE JUDGE CHARLES H WEIGLE on 03/24/2024. (elp)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
EARL ROACH,

:
:
Plaintiff,
:
:
V.
:
:
WARDEN SHAWN EMMONS,
:
:
Defendant.
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_________________________________:

NO. 5:24-cv-00032-MTT-CHW

ORDER & RECOMMENDATION OF DISMISSAL
Plaintiff Earl Roach, who is currently in the Charles D. Hudson Transitional Center
in Lagrange, Georgia, has filed a pro se 42 U.S.C. § 1983 complaint relating to time he
spent at the Georgia Diagnostic and Classification Prison in Jackson, Georgia. Compl.,
ECF No. 1. Plaintiff has also filed a motion for leave to proceed in this action in forma
pauperis. Mot. for Leave to Proceed In Forma Pauperis, ECF No. 6. As set forth below,
Plaintiff’s motion for leave to proceed in forma pauperis in this case is GRANTED, and
it is RECOMMENDED that Plaintiff’s complaint be DISMISSED WITHOUT
PREJUDICE for failure to state a claim.
MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
Any court of the United States may authorize the commencement of a civil action,
without prepayment of the required filing fee (in forma pauperis), if the plaintiff shows
that he is indigent and financially unable to pay the court’s filing fee. See 28 U.S.C.
§ 1915(a). A prisoner wishing to proceed under § 1915 must provide the district court

with both (1) an affidavit in support of his claim of indigence, and (2) a certified copy of
his prison “trust fund account statement (or institutional equivalent) for the 6-month period
immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(b).
Pursuant to this provision, Plaintiff has moved for leave to proceed without
prepayment of the $350.00 filing fee. Plaintiff submitted an unsigned account statement
with a notation that the business office would not sign his forms. Attach. to Mot. 1, ECF
No. 6-1. Plaintiff also submitted a transaction statement, but this document does not
contain any information relating to the six months before he filed the complaint. Id. at 2.
As it appears that Plaintiff attempted to file a complete motion but was prevented from
doing so by the facility’s staff, his motion to proceed in forma pauperis is now
GRANTED. Plaintiff is, however, still obligated to eventually pay the full balance of the
filing fee, in installments, as set forth in § 1915(b) and explained below. The district
court’s filing fee is not refundable, regardless of the outcome of the case, and must
therefore be paid in full even if Plaintiff’s complaint is dismissed prior to service.
For this reason, the CLERK is DIRECTED to forward a copy of this Order to the
business manager of the facility in which Plaintiff is incarcerated so that withdrawals from
his account may commence as payment towards the filing fee, as explained below.
A.

Directions to Plaintiff’s Custodian

Because Plaintiff has now been granted leave to proceed in forma pauperis in the
above-captioned case, it is hereby ORDERED that the warden of the institution wherein
Plaintiff is incarcerated, or the Sheriff of any county wherein he is held in custody, and any
successor custodians, each month cause to be remitted to the CLERK of this Court twenty
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percent (20%) of the preceding month’s income credited to Plaintiff’s trust account at said
institution until the $350.00 filing fee has been paid in full. The funds shall be collected
and withheld by the prison account custodian who shall, on a monthly basis, forward the
amount collected as payment towards the filing fee, provided the amount in the prisoner’s
account exceeds $10.00. The custodian’s collection of payments shall continue until the
entire fee has been collected, notwithstanding the dismissal of Plaintiff’s lawsuit or the
granting of judgment against him prior to the collection of the full filing fee.
B.

Plaintiff’s Obligations Upon Release

An individual’s release from prison does not excuse his prior noncompliance with
the provisions of the PLRA. Thus, in the event Plaintiff is hereafter released from the
custody of the State of Georgia or any county thereof, he shall remain obligated to pay
those installments justified by the income to his prisoner trust account while he was still
incarcerated. The Court hereby authorizes collection from Plaintiff of any balance due on
these payments by any means permitted by law in the event Plaintiff is released from
custody and fails to remit such payments. Plaintiff’s Complaint may be dismissed if he is
able to make payments but fails to do so or if he otherwise fails to comply with the
provisions of the PLRA.
PRELIMINARY REVIEW OF PLAINTIFF’S COMPLAINT
I.

Standard of Review

Because he has been granted leave to proceed in forma pauperis, Plaintiff’s
complaint is now ripe for preliminary review. See 28 U.S.C. § 1915A(a) (requiring the
screening of prisoner cases) & 28 U.S.C. § 1915(e) (regarding in forma pauperis
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proceedings). When performing this review, the court must accept all factual allegations
in the complaint as true. Brown v. Johnson, 387 F.3d 1344, 1347 (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, 148 F.3d
1262, 1263 (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, 541 F.3d 1091, 1100 (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.” Id. (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,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (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, 550 U.S. at 555 (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. Id. at 556. “Threadbare recitals of the elements of
a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556
U.S. at 678.
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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, 50 F.3d 1579, 1582 (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,
340 F.3d 1279, 1282-84 (11th Cir. 2003).
II.

Plaintiff’s Allegations

In his complaint, Plaintiff asserts that he was a parolee being held in the Georgia
Diagnostic and Classification Prison 1 from October 3, 2023, through November 4, 2023.
Compl. 5, ECF No. 1. During that time, Plaintiff asserts that he was not allowed to go to
the law library. Id. As a result of not going to the law library, Plaintiff says that he was
unable “to file the necessary paperwork for [his] power of attorney,” causing him to lose
his home, cars, boat, furniture, and clothing. Id. at 6. Plaintiff seeks monetary damages
related to those items.
III.

Plaintiff’s Claim

Plaintiff’s allegations implicate a potential claim for denial of access to the courts.
To state a claim for the denial of right of access to the courts, a plaintiff must allege facts
to show that he was denied access to the courts and that the denial of access resulted in an
actual injury. See Lewis v. Casey, 518 U.S. 343, 349 (1996). Moreover, the injury must

Plaintiff refers to the prison as Jackson State Prison. The state prison located in Jackson,
Georgia, is the Georgia Diagnostic and Classification Prison.

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relate to prospective or existing litigation, such as “being prevented from presenting
claims” while “in the pursuit of specific types of nonfrivolous cases: direct or collateral
attacks on sentences and challenges to conditions of confinement.”

Wilson v.

Blankenship, 162 F.3d 1284, 1290 & n.10 (11th Cir. 1998).
Plaintiff does not assert any facts to show that he suffered the type of injury required
for a denial of access to the courts claim. In particular, Plaintiff does not set forth any
allegations showing that the lack of law library access inhibited Plaintiff from pursuing
either an attack on his conviction or sentence or a case challenging the conditions of his
confinement.

Instead, Plaintiff contends that he was unable to complete power-of-

attorney paperwork, and that, as a result, he was somehow deprived of various assets.
Plaintiff does not explain why he needed to complete power-of-attorney paperwork, nor
does he explain how his inability to do so caused him to lose any assets.
Moreover, Plaintiff does not allege any facts showing that Warden Shawn Emmons,
the only named defendant, was actually involved in preventing Plaintiff from going to the
law library. Thus, Plaintiff’s allegations do not state a constitutional claim for denial of
access to the courts, and it is therefore RECOMMENDED that this complaint be
DISMISSED WITHOUT PREJUDICE.
OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections
to this order and recommendation with the United States District Judge to whom this case
is assigned WITHIN FOURTEEN (14) DAYS after being served with a copy of this order
and recommendation. The parties may seek an extension of time in which to file written
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objections, provided a request for an extension is filed prior to the deadline for filing written
objections. Any objection is limited in length to TWENTY (20) PAGES. See M.D. Ga.
L.R. 7.4. Failure to object in accordance with the provisions of § 636(b)(1) waives the
right to challenge on appeal the district judge’s order based on factual and legal conclusions
to which no objection was timely made. See 11th Cir. R. 3-1.
SO ORDERED and RECOMMENDED, this 27th day of March, 2024.
s/ Charles H. Weigle
Charles H. Weigle
United States Magistrate Judge

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