Davis v. State of Georgia et al
Filing
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OPINION AND ORDER ADOPTING AS MODIFIED the 2 Final Report and Recommendation. This action is DISMISSED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that a Certificate of Appealability is DENIED. Signed by Judge William S. Duffey, Jr on 10/8/2013. (anc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
LINDA GOOCH DAVIS, c/o Nora I.
Bee, Jr., Citizens Against Injustice
Plaintiff,
v.
1:13-cv-1974-WSD
STATE OF GEORGIA, et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court on Magistrate Judge Gerrilyn G. Brill’s Final
Report and Recommendation [2].
I.
BACKGROUND
On June 13, 2013, Nora Isaac Bee, Jr. filed this petition for habeus corpus on
behalf of Linda Gooch Davis, an inmate at the Fayette County Jail. Both the
petition and the in forma pauperis application were signed by Mr. Bee, but not by
Ms. Davis.
On July 17, 2013, the Magistrate Judge issued her R&R finding that Mr. Bee
had not shown himself to be a lawyer, and therefore cannot assert a claim on behalf
of Ms. Davis. The R&R recommended returning documents to Mr. Bee, sending
the proper forms for filing a habeus corpus petition to Ms. Davis, and denying a
certificate of appealability.
There have not been any objections filed to the R&R.
II.
DISCUSSION
A.
Legal Standard
After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1) (Supp. V 2011);
Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam). A
district judge “shall make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.” 28
U.S.C. § 636(b)(1). If no party has objected to the report and recommendation, a
court conducts only a plain error review of the record. United States v. Slay, 714
F.2d 1093, 1095 (11th Cir. 1983) (per curiam).
B.
Analysis
1.
Review of the R&R
No party objected to the R&R’s finding that this action cannot be asserted by
Mr. Bee on behalf of Ms. Davis. This Court does not find error in this conclusion.
See 28 U.S.C. § 1654 (providing that parties may represent themselves personally
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or by counsel); see also Simon v. Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir.
2008) (“It is well established that the privilege to represent oneself pro se provided
by § 1654 is personal to the litigant and does not extend to other parties or
entities.”).
Although the Magistrate Judge recommended that this action be
administratively closed, the Court determines it is appropriate to dismiss the action
without prejudice. See 28 U.S.C. 636(b)(1) (“A judge of the court may . . .
modify, in whole or in part, the findings or recommendations made by the
magistrate judge.”); Walker v. Atlanta Pub. Sch., No. 1:09-CV-3606-TCB 2010
WL 2653469, at *1 (N.D. Ga. July 2, 2010) (explaining that, when a non-attorney
represents a pro se plaintiff, the court should dismiss the action without prejudice
to protect the plaintiff’s rights). The Court finds that this action should be
dismissed without prejudice.
2.
Certificate of Appealability
A district court “must issue or deny a certificate of appealability when it
enters a final order adverse to the appellant.” See R. Governing § 2254 Cases
11(a). “Where a district court has rejected the constitutional claims on the merits,
the showing required to satisfy § 2253(c) is straightforward: The petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of the
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constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 4884
(2000). The Court agrees with the Magistrate Judge that it has not been
demonstrated that a reasonable jurist could debate whether this action, brought by a
non-lawyer on behalf of Plaintiff, can proceed. Thus, the certificate of
appealability is denied.
III.
CONCLUSION
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Gerrilyn G. Brill’s Final
Report and Recommendation [2] is ADOPTED AS MODIFIED. This action is
DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that a certificate of appealability, under Rule
11 of the Rules Governing Section 2254 Cases, is DENIED.
SO ORDERED this 8th day of October, 2013.
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