Redford v. Gwinnett County Judicial Circuit et al
Filing
13
OPINION AND ORDER adopting 2 Final Report and Recommendation. The Court denies permission to proceed in forma pauperis and denies as moot 6 Application to Appeal in forma pauperis. This action is DISMISSED WITHOUT PREJUDICE. Signed by Judge William S. Duffey, Jr on 8/24/2015. (anc) Modified on 8/25/2015 in order to update docket text (anc).
opportunities, refused to investigate the alleged abuse of his children, and engaged
in judicial misconduct.
On October 7, 2014, Plaintiff, a prisoner incarcerated in the Douglas County
Jail in Douglasville, Georgia, and proceeding pro se, filed his Complaint [1].
Plaintiff, in his Complaint, asserts claims for a violation of his constitutional rights
and his right to access the courts, that “Defendants”1 are covering up crimes
against his children, and that a clerk in the Georgia Supreme Court, Ms. Theresa
Barnes, “illegally den[ied] all appeals to that Court, terminations of Plaintiff’s bar
admission exam, job opportunities, contracts, law school and other educational
activities.” (Compl. at 1). Plaintiff appears to seek an investigation of these
purported claims. (Id.).
On October 15, 2014, the Magistrate Judge recommended that the Court
deny Plaintiff in forma pauperis (“IFP”) status and dismiss Plaintiff’s Complaint
pursuant to 28 U.S.C. § 1915(g) because Plaintiff, while incarcerated, previously
1
The Court notes that Plaintiff names Gwinnett County Judicial Circuit and
Richard Alexander Jr., Superior Court Clerk (together, “Defendants”), as the only
Defendants to this action. Plaintiff does not assert any factual allegations or claims
against Defendants and instead merely lists them as Defendants in the caption of
the Complaint.
2
filed at least three (3) civil actions that have been dismissed as frivolous,
malicious, or for failure to state a claim.2
On October 23, 2014, Plaintiff filed his Objections to the R&R.
On October 28, 2014, Plaintiff appealed [5] the Magistrate Judge’s findings
and recommendations in the R&R. His appeal was docketed in the Eleventh
Circuit as Case No. 14-14628 (the “Appellate Action”). That same day, Plaintiff
also filed [6] his IFP Appeal Application in this Court.
On November 24, 2014, the Eleventh Circuit denied [10] Plaintiff’s IFP
Appeal Application and ordered him to pay the district court fees within fourteen
(14) days. The Eleventh Circuit informed Plaintiff that a failure to pay the fees in
the district court would result in dismissal of his appeal “without further notice by
the clerk.” (See [10] at 8).
On January 16, 2015, the Eleventh Circuit Clerk of Court dismissed [12]
Plaintiff’s appeal for failure to pay the required fee in the district court and failure
to prosecute.
2
The Magistrate Judge also found that Plaintiff does not identify a specific
Defendant whose actions are placing him in imminent threat of serious injury, as to
support an exception to the “three strikes” provision under 28 U.S.C. § 1915(g).
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II.
DISCUSSION
A.
Legal Standard on Review of an R&R
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); Williams
v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982), cert denied, 459 U.S. 1112
(1983). 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). With respect to those findings and
recommendations to which a party has not asserted objections, the district judge
must conduct a plain error review of the record. United States v. Slay, 714 F.2d
1093, 1095 (11th Cir. 1983).
Plaintiff’s Objections do not address the Magistrate Judge’s reasons for
dismissing the Complaint, and instead assert generic arguments about his right to
access the courts. These are not valid objections and the Court will not consider
them. See Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988) (“Parties
filing objections to a magistrate’s report and recommendation must specifically
identify those findings objected to. Frivolous, conclusive, or general objections
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need not be considered by the district court.”).3 As Plaintiff has not objected to the
Magistrate Judge’s specific findings and conclusion, the Court reviews the
Magistrate Judge’s determination for plain error. See Slay 714 F.2d at 1095.
B.
Analysis
Section 1915(g) of Title 28 prohibits a prisoner from proceeding IFP if the
prisoner has
on 3 or more prior occasions, while incarcerated or detained in any
facility, brought an action or appeal in a court of the United States that
was dismissed on the grounds that it is frivolous, malicious, or fails to
state a claim upon which relief may be granted, unless the prisoner is
under imminent danger of serious physical injury.
28 U.S.C. § 1915(g). Plaintiff, while incarcerated, has brought at least three (3)
actions that were dismissed as frivolous, 4 and Plaintiff has not established that he
is under imminent danger of serious physical injury. The Magistrate Judge
recommended that Plaintiff’s IFP Complaint be dismissed without prejudice
3
To the extent Plaintiff asserts that “Judge King erred by not considering his
case under imminent threat of serious injury as alleged because he was poisoned
twice when he went to Court in Gwinnett County Superior Court,” Plaintiff does
not offer any evidence in support of this allegation, and he fails to show how this
alleged “poisoning” is related to the allegations in his Complaint. (Obj. at 1).
Because Plaintiff’s general allegation lacks particularity and factual support, the
Court finds that this is not a cognizable objection to the findings and
recommendations of the Magistrate Judge. See Mardsen, 847 F.2d at 1548.
4
See Redford v. Lewis, 1:04-CV-1636-WBH; Redford v. Hamil,
1:04-CV-933-WBH; Redford v. Gwinnett County Judicial Circuit,
1:02-CV-2739-WBH; Redford v. Unnamed, 1:14-cv-2724-WSD; and
Redford v. Judge James, 1:14-cv-2043-WSD.
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because it is barred by Section 1915(g). See 28 U.S.C. § 1915(g);
Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002). The Court finds no plain
error in the Magistrate Judge’s findings or recommendation.5, 6
III.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiff’s Objections [4] are
OVERRULED.
IT IS FURTHER ORDERED that Magistrate Judge Janet F. King’s Final
Report and Recommendation [2] is ADOPTED. The Court DENIES permission
5
The Court also notes that, even if Plaintiff’s case was not barred by 28
U.S.C. § 1915(g), where a plaintiff identifies a defendant in the caption of his
complaint but fails to allege any specific injury or legal violation committed by
that defendant, the plaintiff fails to state a plausible claim for relief that would
allow the court to reasonably infer that the captioned defendant is liable to
plaintiff. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Cook
v. Suntrust Mortgage, Inc., No. 10-cv-660-WSD, Doc. 4 at 2, n.1 (N.D. Ga. Apr.
26, 2010) (dismissing defendants in part because the complaint only mentioned
defendants in the caption but did not allege any facts to support a claim for
liability). Plaintiff identifies Defendants only in the caption of the Complaint and
does not assert any factual allegations or claims against them. Plaintiff’s
Complaint is required to be dismissed for this additional reason. See 28 U.S.C.
§ 1915(e)(2)(B)(ii) (providing that the Court must dismiss a case where the
complaint is frivolous, malicious, and fails to state a claim on which relief may be
granted); see also Iqbal, 556 U.S. at 678.
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Because the Eleventh Circuit has dismissed the Appellate Action, the Court
denies Plaintiff’s IFP Appeal Application as moot.
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for Plaintiff to proceed in forma pauperis. This action is DISMISSED
WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that Plaintiff’s Application to Appeal in
forma pauperis [6] is DENIED AS MOOT.
SO ORDERED this 24th day of August, 2015.
_______________________________
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE
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