Larson v. Doe

Filing 6

OPINION AND ORDER adopting Magistrate Judge John K. Larkins, III's Final Report and Recommendation 3 and remanding this action to the Magistrate Court of DeKalb County. Signed by Judge William S. Duffey, Jr on 10/2/17. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
LINDA LARSON,
Plaintiff,
v.

1:17-cv-1595-WSD

HARPO WILL DOE, and all others,
Defendants.

OPINION AND ORDER
This matter is before the Court on Magistrate Judge John K. Larkins, III’s
Final Report and Recommendation [3] (“Final R&R”). The R&R recommends this
action be remanded to the Magistrate Court of DeKalb County.
I.

BACKGROUND
On May 4, 2017, Defendant Harpo Will Doe (“Defendant”) filed his

application for leave to proceed in forma pauperis (“IFP”) [1]. On May 5, 2017,
the Magistrate Judge granted Defendant’s IFP application for the limited purpose
of dismissal. Defendant filed his Notice of Removal [2] the same day. Defendant
seeks removal of a state dispossessory action brought by Plaintiff Linda Larson
(“Plaintiff”) in the Magistrate Court of DeKalb County, Georgia. The Court notes
Defendant has attempted to remove nearly identical actions to this Court in the

past, and the Court has remanded those cases for lack of subject matter jurisdiction.
See, e.g., Order, Broadstone Maple, LLC v. Alexander Corporate
Accommodations, LLC, No. 1:16-cv-2774-WSD (N.D. Ga. August 2, 2016) (Doc.
4). The Court also notes that, because Defendant is a frequent filer of frivolous
lawsuits, the Court has previously ordered Defendant “to disclose his full litigation
history in any civil rights complaint and/or [IFP] affidavit that he files.” See, e.g.,
Williams v. Harpo, No. 1:16-cv-12225-WSD (N.D. Ga. 2016) (ECF No. 2 at 2);
Harpo v. City of Atlanta, No. 1:16-cv-1067-WSD (N.D. Ga. 2016) (ECF No. 2 at
1-2); Harpo v. City of Atlanta, No. 1:14-cv-2157-WSD (N.D. Ga. 2014) (ECF No.
2 at 1-2); Harpo v. Fulton Cty. Sheriff, No. 1:14-cv-2208-WSD (N.D. Ga. 2014)
(ECF No. 2 at 1-2).
On May 5, 2017, the Magistrate Judge issued his Final R&R. The
Magistrate Judge found that the Court lacks subject matter jurisdiction over
Plaintiff’s Complaint, and recommends this action be remanded to the Magistrate
Court of DeKalb County. No objections to the Final R&R have been filed.
II.

ANALYSIS
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
2

judge’s report and recommendation. 28 U.S.C. § 636(b)(1); Williams
v. Wainwright, 681 F.2d 732 (11th Cir. 1982), cert. denied, 459 U.S. 1112 (1983).
Where, as here, no party objects to the R&R, the Court conducts a plain error
review of the record. See United States v. Slay, 714 F.2d 1093, 1095 (11th Cir.
1983).
B.

Discussion

The Magistrate Judge determined that the Complaint does not contain any
federal claims, and removal based on federal question jurisdiction is improper.
([3] at 3). The Magistrate Judge also determined that Defendant fails to show the
Court has diversity jurisdiction over this action, because his allegation that
“[Plaintiff] is a Georgia citizen and he is not a citizen of Georgia” does not show
the citizenship of the parties for purposes of 28 U.S.C. § 1332(a). (Id.). Even if
Defendant could correct this deficiency, he cannot meet the amount-in-controversy
requirement, because Plaintiff’s dispossesory claim cannot be reduced to a
monetary sum.1 (R&R at 4). The Magistrate Judge concluded that the Court lacks

1

To the extent Defendant claims removal under Section 1443 based on the
bias of state court judges, his allegations fall short of the specific language of racial
equality that section 1443 demands. See Kopec v. Jenkins, 357 F. App’x 213, 214
(11th Cir. 2009) (quoting Georgia v. Rachel, 384 U.S. 780, 792 (1966)); see also
28 U.S.C. § 1443 (providing exception to the well-pleaded complaint rule for
removal of an action that is “[a]gainst any person who is denied or cannot enforce
3

subject matter jurisdiction over this state dispossessory proceeding, and
recommends the Court remand this action to the Magistrate Court of DeKalb
County.2 The Court finds no plain error in the Magistrate Judge’s findings and
recommendation, and this action is remanded. See Slay, 714 F.2d at 1095.

in the courts of such State a right under any law providing for the equal civil rights
of citizens of the United States”); Rachel, 384 U.S. at 788 (Section 1443 requires
defendant to show “both that the right upon which they rely is a ‘right under any
law providing for . . . equal civil rights,’ and that they are ‘denied or cannot
enforce’ that right in the courts of Georgia.”); Novastar Mortg., Inc. v. Bennett,
173 F. Supp. 2d 1358, 1362 (N.D. Ga. Nov. 5, 2001) (“There is no cognizable
claim for a civil rights violation presented in this case . . . [because] [t]here is no
reference in any pleading to ‘any law providing for the equal civil rights of citizens
of the United States, or of all persons within the jurisdiction thereof.’”). Removal
is not proper based on 28 U.S.C. § 1443 and this action is required to be remanded
for this additional reason.
2
Because Defendant is a frequent filer of frivolous lawsuits, the Court has
previously ordered Defendant “to disclose his full litigation history in any civil
rights complaint and/or [IFP] affidavit that he files.” See, e.g., Williams v. Harpo,
No. 1:16-cv-12225-WSD (N.D. Ga. 2016) (ECF No. 2 at 2).
Under Local Rule 41.3(A)(2), “[t]he court may, with or without notice to the
parties, dismiss a civil case for want of prosecution if: . . . [a] plaintiff . . . shall,
after notice, . . . fail or refuse to obey a lawful order of the court in the case.” LR
41.3(A)(2), NDGa. Defendant did not disclose his full litigation history in his
Application or Notice of Removal. The Court’s prior Orders, and the fact that
other actions filed by Defendant have been dismissed for his failure to comply with
the Court’s prior Orders, put Defendant on notice that he was required to disclose
his full litigation history in his Application. Defendant’s failure to comply with the
Court’s prior Orders also warrants dismissal of this action. See LR 41.3(A)(2),
NDGa.
4

III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge John K. Larkins, III’s

Final Report and Recommendation [3] is ADOPTED.
IT IS FURTHER ORDERED that this action is REMANDED to the
Magistrate Court of DeKalb County.

SO ORDERED this 2nd day of October, 2017.

5