Hesed-El v. Federal National Mortgage Association et al

Filing 126

ORDER denying 114 Motion Rule 60; denying 115 Motion Rule 52; denying 117 Motion/REQUEST for Judicial Notice; denying 119 Motion for Leave to Appeal in forma pauperis. Pursuant to Federal Rule of Appellate Procedure 24(a) (4), the Clerk is directed to transmit this Order to the Eleventh Circuit Courtof Appeals. This case remains closed. Signed by Chief Judge J. Randal Hall on 10/10/2019. (thb)

1''!- :
IN THE UNITED

STATES DISTRICT COURT FOR THE
'HE

SOUTHERN DISTRICT OF GEORGIA

.''i •
•

7019 OCT 10 PH

AUGUSTA DIVISION

BRO T. HESED-EL,
Plaintiff,
CV

V.

117-146

COURTNEY MCCORD, in Her
Individual and Official

Capacities; VERA L. BUTLER, in
Her Individual and Official

Capacities; and City of
Augusta-Richmond County,
Defendants.

ORDER

Before the Court are the following motions: (1) Plaintiff's
motion pursuant to Federal Rule of Civil Procedure 60 (Doc. 114);
(2) Plaintiff's motion pursuant to Federal Rule of Civil Procedure

52 {Doc. 115); (3) Plaintiff's motion for judicial notice (Doc.
117); and (4) Plaintiff's motion to proceed on appeal in forma
pauperis ("IFP") (Doc. 119).

For the reasons set forth below,

each motion is DENIED.

I. BACKGROUND

Plaintiff is a serial filer in this Court.
Hesed-El,

No. CV

See Georgia v.

118-037, 2018 WL 1404893, at *1, *2 (S.D. Ga.

Mar. 28, 2018) (identifying eight cases filed by Plaintiff over

two years); see also Hesed-El v. Aldridge Pite, LLP, et al., CV
119-162, United States District Court for the Southern District of

Georgia, Augusta Division (transferred); Hesed-El v. Lown, et al.,
CV 118-200, United States District Court for the Southern District

of Georgia, Augusta Division; Hesed-El v. Poff, CV 118-079, United
States District Court for the Southern District of Georgia, Augusta

Division.

In

the

present

action.

Plaintiff

alleges

illegally arrested without probable cause and authority.
Am. Compl., Doc. 84-1,

24, 39.)

he

was

(Second

Defendants moved to dismiss

Plaintiff s complaint pursuant to Federal Rule of Civil Procedure
12(b)(6).

(Defs.' Mot. to Dismiss, Doc. 88.)

On March 29, 2019,

the Court determined Plaintiff failed to state a claim upon which
relief could be granted and dismissed the action.

(Mar. 29, 2019

Order, Doc. 107, at 5-17, 22.)

Following the Court's March 29, 2019 Order, Plaintiff filed
the motions before the Court.

The Court addresses each motion in

turn.

II. DISCUSSION

A. Motion for Reconsideration

Plaintiff filed his motion for reconsideration pursuant to
Federal

Rule

of

Civil

Procedure

60(b).

A

motion

for

reconsideration following a final judgment ^'falls within the ambit
of either Rule 59(e) (motion to alter or amend a judgment) or Rule

60(b) (motion for relief from judgment or order)

Region 8 Forest

Serv, Timber Purchasers Council v. Alcock, 993 F.2d 800, 805-06

n.5 (11th Cir. 1993).

Generally, when a motion for reconsideration

is filed within twenty-eight days of the final judgment, the motion
is treated as a motion pursuant to Federal Rule of Civil Procedure
59(e).

See Mahone v. Ray, 326 F.3d 1176, 1177 n.l (11th Cir. 2003)

(analyzing

Rule

59

under

former

ten-day

deadline).

Because

Plaintiff is proceeding pro se, the Court will construe Plaintiff's

motion as a motion pursuant to Rule 59(e) where possible.
Reconsideration

remedy,

which

should

of

be

an

earlier

permitted

order

is

sparingly.

an

extraordinary

Ceja

v.

United

States, No. CV 115-018, 2017 WL 3401459, at *1 (S.D. Ga. Aug. 8,

2017) (citing Williams v. Cruise Ships Catering & Serv. Int'l,

N.V., 320 F. Supp. 2d 1347, 1358 (S.D. Fla. 2004)).

Although not

enumerated in the rule, ^'the only grounds for granting a Rule
59[(e)] motion are newly-discovered evidence or manifest errors of
law or fact."

Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007)

(per curiam).

Under Federal Rule of Civil Procedure 60(b), a court

may relieve a party from a final judgment, order, or proceeding
for (1) mistake or neglect, (2) newly discovered evidence, (3)

fraud, (4) a void judgment, (5) a satisfied judgment, or (6) any
other reason justifying relief.
A motion for reconsideration should not be used ^^to relitigate

old matters, raise argument or present evidence that could have

been raised prior to the entry of judgment."

Wilchombe v. TeeVee

Toons, Inc., 555 F.3d 949, 957 (11th Cir. 2009) (citation omitted).

Whether to grant a motion for reconsideration is within the sound
discretion

of the

Am., LLP, 667

district court.

Ebanks

v.

Samsung

Telecomm.

F. App'x 740, 741 (11th Cir. 2016) (per curiam)

(citing Lamonica v. Safe Hurricane Shutters, Inc., 711 F.3d 1299,
1317-18 (11th Cir. 2013) (Rule 59(e)); Am. Bankers Ins. Co. v. Nw.

Nat^ 1 Ins. Co., 198 F.3d 1332, 1338 (11th Cir. 1999) (Rule 60(b))).
1. Rule 59(e)

First, the Court analyzes Plaintiff's request that the Court
revise its judgment because of newly discovered evidence under
Rule 59(e).

To succeed on a

Rule 59(e) motion claiming newly

discovered evidence, ''the movant must show either that the evidence

is newly discovered or, if the evidence was available at the time
of the decision being challenged, that [the movant] made a diligent
yet

unsuccessful

effort

to

discover

the

evidence."

Bowman, 901 F.2d 1053, 1057 n.6 (11th Cir. 1990).

Chery

v.

In support of

his motion. Plaintiff filed an "Affidavit of New Evidence" (Doc.
112) and "Addendum to Affidavit of New Evidence" (Doc. 122).

The

affidavit includes information that is not "evidence," evidence

already in the record, new evidence that is entirely irrelevant to

this lawsuit, and evidence that was available at the time of the
judgment.^

Second,

Plaintiff appears to argue

the

Court committed

a

manifest error of law or fact.

In asserting the Court should

correct

on

a

manifest

error

of

fact

a

dismissal for

failure

to

state a claim. Plaintiff effectively asks the Court to revisit the
complaint's
Diagnostic

allegations.
Physicians

See

Grp.,

United States ex
P.C.,

No.

rel. Heesch

11-0364-KD-B,

1948326, at *1-2 (S.D. Ala. May 15, 2014).

2014

v.
WL

The Court previously

analyzed the complaint when deciding Defendants' motion to dismiss
and concluded Plaintiff failed to state a claim.^

Nothing has

^ The only arguably new evidence the Court can discern is a purported transcript
from the pre-arrest hearing.
(Pre-Arrest Hr'g Tr., Doc. 122, at 11-14.)
Although the hearing transpired on September 22, 2017, Plaintiff claims he did
not receive the transcript until June 21, 2019.
(Addendum
to Aff. of New
Evid., Doc. 122, at 2.) At any rate, the hearing transcript does not necessitate
altering the Court's judgment.

2 Although the argument has no merit. Plaintiff continues to aver that he was a
teacher at Helms College at the time of the incident in question. (Pl.'s Br.
Supp. Mots., Doc. 113, at 9.) Plaintiff later supplemented his filings to state
he was not offered another teaching contract with Helms College. (Notice of
Am. Financial Status, Doc. 123.)

Plaintiff contends, based on his status as a

teacher at the time, O.C.G.A. § 17-4-40(c) required a judge to issue the arrest
warrant.
O.C.G.A. § 17-4-40(c) has no bearing on Plaintiff's Section 1983

claim: "Any warrant for the arrest of a . . . teacher[] or school administrator
for any offense alleged to have been committed while in the performance of his
or her duties may be issued only by a judge of a superior court, a judge of a
state court, or a judge of a probate court." First, O.C.G.A. § 17-4-40 is a
state protection, and as explained herein. Section 1983 is not a mechanism to
recover for a violation of a protection afforded by state law.
Second, not
only did the operative complaint entirely omit Plaintiff's alleged status as a
teacher, but it makes no mention that the offense was committed while in the

performance of his teacher duties.
The documents Plaintiff supplied in
requesting reconsideration and attached to his operative complaint reveal a
landlord-tenant dispute served as the foundation of the criminal complaint
against Plaintiff. (See Second Am. Compl., at 27-36; Pre-Arrest Hr'g Tr., at
11—14.) Any contention that the offense could have been committed while in the
performance of Plaintiff's duties as an educator is farfetched.

changed with the complaint since that time.^

For these reasons,

the Court refrains from altering or amending its dismissal pursuant
to Federal Rule of Civil Procedure 59(e).

2. Rule 60(b)

Plaintiff

provisions

further

asserts

only available

under

that

the

relief

is

stricter

necessary

standard

under

of

Rule

60(b).
a. Rule 60(b)(1)

First,

Plaintiff

requests

relief

under

Rule

mistake, inadvertence, or excusable neglect.
Doc. 116, at 1.)

60(b)(1)

for

(Notice of Mot.,

After combing Plaintiff's numerous filings, the

Court finds a single reference to Plaintiff's mistake, ^^(see CV

118-079, Doc. 12, apology)" (id.), and the reference contains no

facts warranting relief under Rule 60(b)(1).

The citation is to

Plaintiff's ^'Notice of Government Official Apology" filed in one

of Plaintiff's many lawsuits in this Court.
118-079, Doc. 12.)

(Hesed-El v. Poff, CV

Plaintiff cites his apology as his "mistake"

3 Plaintiff appears to be changing his position regarding the probable cause
determination, which is not permitted on a motion for reconsideration. In the

operative complaint. Plaintiff alleged that Defendant McCord made the probable
cause

determination.

(Second

Am.

Compl.,

10,

22,

23.)

In

his

brief

supporting his motions, Plaintiff continues to assert that Defendant McCord
determined probable cause. (Pl.'s Br. Supp. Mots., at 9.) At the same time.
Plaintiff also now argues that Defendant McCord did not make a determination of
probable cause and instead contends that Judge Scott Allen made the probable
cause determination.

(Id. at 5, 8.)

The Court need not consider arguments

that could have been raised prior to judgment, and if anything. Plaintiff's new

position undercuts his former claim that a clerk improperly made a probable
cause determination.

meriting

reconsideration

in

this

separate

matter.

Plaintiff

misunderstands the meaning of Rule 60(b)(1).
The case Plaintiff references is only tangentially related to

the present action; that meritless lawsuit has no impact on the
qualities of this dismissed lawsuit.

Therefore, Plaintiff fails

to put forth a legitimate reason for the Court to reconsider its
judgment under Rule 60(b)(1).
b. Rule 60(h)(3)

Next, Plaintiff seeks relief from the judgment due to fraud,

misrepresentation,

or

misconduct

of

the

Plaintiff misinterprets the relevant rule.

Defendants.

Again,

Relief is warranted

under Rule 60(b)(3) when the opposing party commits some fraud,

misrepresentation, or misconduct in the present action leading to
the judgment the movant seeks to alter.
constitutes fraud which

"^Fraud on the court

Mefiles the court itself, or is a fraud

perpetrated by officers of the court' that prevents the court from
impartially judging cases before it. . . .

A court should deny a

plaintiff's motion ^in the absence of such conduct.'"

Smith v.

Nat'l Credit Sys., Inc., 760 F. App'x 869, 871 (11th Cir. 2019)

(per curiam) (quoting Travelers Indem. Co. v. Gore, 761 F.2d 1549,
1551 (11th Cir. 1985)).

In

Plaintiff's

brief

supporting

his

motion

for

reconsideration. Plaintiff notes ^'fraudulent acts under a color of
authority and without due process of law." (Pl.'s Br. Supp. Mots.,
7

Doc. 113, at 9.)

Alleged fraud going to the merits of the lawsuit

is not the conduct contemplated in Rule 60(b)(3).
even

the

slightest

concern

that

fraud,

No facts raise

misrepresentation,

or

misconduct by Defendants caused an impartial decision.
c. Rule 60(b)(5)

The Court now turns to Plaintiff's requested relief under
Rule 60(b)(5).

Once more. Plaintiff directs the Court to Hesed-

El V. Poff, CV 118-079, to request relief from sanctions imposed
in that case.

(Notice of Mot., at 1.)

In Hesed-El v. Poff, the

Court ordered the posting of a $100 frivolity bond before Plaintiff
is permitted to file future lawsuits.
the

extent

Plaintiff seeks

(CV 118-079, Doc. 9.)

reconsideration

of a

To

judgment in

a

separate action, this case is not the place to request that relief.
d. Rule 60(b)(6)

Rule 60(b)(6) is a catchall provision, allowing the district

court to set aside a judgment for "any other reason that justifies
relief."

Relief under this subsection is reserved for "cases that

do not fall into any of the other" subsections of Rule 60(b).
United States v. Real Prop. & Residence Located at Route 1, Box

111, Firetower Rd., Semmes, Mobile Cty., 920 F.2d 788, 791 (11th
Cir. 1991).

movant

must

The Eleventh Circuit instructs that "a Rule 60(b)(6)

persuade

the

court

that

the

sufficiently extraordinary to warrant relief.

circumstances

are

Even then, whether

to grant the requested relief is a matter for the district court's
8

sound discretion."

Toole

v.

Baxter

Healthcare Corp., 235

F.3d

1307, 1317 (11th Cir. 2000) (citation and internal quotation marks
omitted).

Plaintiff argues —

what the Court believes to be a

novel

argument — that ^Mi]t is a violation of the laws of Islam for a

clerk to judge a Moslem under Christian law."
Doc.

114,

SI 1.)

frivolous.

The

Court summarily

(Pl.'s Rule 60 Mot.,

rejects this argument as

Nothing else in Plaintiff's motion merits discussion

under Rule 60(b)(6).
B. Federal Rule of Civil Procedure 52

Unable to find justification for relief under Rules 59 and

60, Plaintiff argues that, under Rule 52, the Court should amend
its "findings" contained in the March 29, 2019 Order dismissing
this action.

(Notice of Mot., at 1.)

Under Rule 52(a)(3), "The

court is not required to state findings or conclusions when ruling
on a motion under Rule 12." "When considering a motion to dismiss,
the court is not to assess the veracity or weight of the evidence;
rather, the
facial

^purpose of a Rule 12(b)(6) motion is to test the

sufficiency

of

the

statement

of

claim

for

relief.'"

Williams v. Keenan, No. 5:06-CV-290 (CAR), 2007 WL 81823, at *2
(M.D. Ga. Jan. 8, 2007) (quoting Brooks v. Blue Cross & Blue Shield
of Fla, Inc., 116 F.3d 1364, 1368 (11th Cir. 1997) (per curiam)).

Therefore, "the requirements of Rule 52 do not apply . . . since
Rule 52 applies only to actions ^tried on the facts' or rulings

otherwise

expressly

included,

and

the

dismissal

case . . . do[es] not fall into these categories."

of

[the]

Beepot v. JP

Morgan Chase Nat^l Corp. Servs., Inc., 626 F. App'x 935, 938 (11th
Cir. 2015) (per curiam).
Here, Plaintiff first asks the Court to amend its "finding"
of insufficient evidence in dismissing the case.

The Court made

no such finding; therefore, the Court cannot amend a finding it
did not make.

Second, Plaintiff claims that the Court needs to

amend its findings or make additional findings.

As shown above,

the Court did not make findings and there is no reason to amend

its judgment.

Rule 52 is not the proper Rule under

which to

reconsider the March 29, 2019 Order at issue.
C. Motion to Take Judicial Notice

Plaintiff sets forth several "Adjudicative Facts that Must be

Noticed" in support of his motions.
Doc. 117, at 2-3.)
the asserted facts.

(Request for Judicial Notice,

The Court declines to take judicial notice of
Pursuant to Federal Rule of Evidence 201(b),

"The Court may judicially notice a fact that is not subject to
reasonable dispute because it: (1) is generally known within the
trial court's territorial jurisdiction; or (2) can be accurately
and

readily

determined

reasonably be questioned."

from

sources

whose

accuracy

cannot

Facts appropriate for judicial notice

include "(1) scientific facts: for

instance,

when

does the

sun

rise or set; (2) matters of geography: for instance, what are the

10

boundaries of a state; or (3) matters of political history: for
instance, who was president in 1958.''
211, 214 (11th Cir. 1997).

Shahar v. Bowers, 120 F.3d

"While a court has wide discretion to

take judicial notice of facts, . . . the taking of judicial notice
of

facts

process."

is,

as

a

matter

of

evidence

law,

a

highly

limited

Pippin' Dots, Inc. v. Frosty Bites Distribution, LLC,

369 F.3d 1197, 1204-05 (11th Cir. 2004) (citation and internal
quotation marks omitted).

Here,

the

"facts"

asserted

are

either

(1)

subject

to

reasonable dispute (Asserted "Facts," 1, 2, 3, and 6); (2) opinions
of the Supreme Court of Georgia and Court of Appeals of Georgia,
which are not facts (Asserted "Facts," 4, 5), see Packer v. Jones,

No. 06-0665-CG-B, 2013 WL 6019293, at *3 (S.D. Ala. Nov. 13, 2013);

(3)

facts

motion

to

(Asserted

already
dismiss,
"Facts,"

accepted
and
1,

as

true

therefore,
2,

7);

in

considering

not

and/or

impacting

(4)

facts

Defendants'

the

judgment

irrelevant

to

reconsidering the Court's judgment (Asserted "Facts," 3, 5, 8, 9,
10), see Harqis v. Access Capital Funding, LLC, 674 F.3d 783, 793

(8th Cir. 2012) ("Courts are not required to take judicial notice
of irrelevant materials.").

Consequently, the Court refrains from

taking judicial notice.^

Plaintiff requests to be heard on the issue of judicial notice.
(Req. for
Judicial Notice, Doc. 117, at 3.) That request is DENIED. "Since the effect
of taking judicial notice under Rule 201 is to preclude a party from introducing
contrary evidence and in effect, directing a verdict against him as to the fact
noticed, the fact must be one that only an unreasonable person would insist on
11

D. Motion to Proceed on Appeal IFP

Applications to proceed
U.S.C. § 1915 and

on

appeal IFP

Federal Rule of Appellate

are governed

by 28

Procedure 24.

In

relevant part, section 1915(a) provides:

(1) . . . [A]ny court of the United States may authorize
the commencement, prosecution or defense of any suit,
action or proceeding, civil or criminal, or appeal
therein,
without
prepayment
of
fees
or
security
therefor, by a person who submits an affidavit that
includes a statement of all assets such prisoner
possesses^ that the person is unable to pay such fees or
give security therefor. Such affidavit shall state the
nature of the action, defense or appeal and affiant's
belief that the person is entitled to redress.

(3) An appeal may not be taken [IFP] if the trial court
certifies in writing that it is not taken in good faith.

Federal Rule of Appellate Procedure 24(a) requires, in pertinent
part, that:

[A] party to a district-court action who desires to
appeal [IFP] must file a motion in the district court.
The party must attach an affidavit that: (A) shows in
the detail prescribed by Form 4 of the Appendix of Forms
the party's inability to pay or to give security for
fees and costs; (B) claims an entitlement to redress;

and (C) states the issues that the
present on appeal.

party intends to

disputing." United States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994), "In
order to fulfill these safeguards, a party is entitled an opportunity to be
heard as to the propriety of taking judicial notice." Paez v. Sec'y, Fla. Dep^t
of Corrs., 931 F.3d 1304, 1307 (11th Cir. 2019). Plaintiff is the party asking
the Court to take judicial notice, and he is not at risk of the Court taking
judicial notice of a fact against him. That said, the procedural safeguard to
be heard belongs to Defendants.
Since the Defendants did not request to be

heard, and the Court denies Plaintiff's request for judicial notice, no hearing
is required.

^ "Despite the statute's use of the phrase ^prisoner possesses,' the affidavit
requirement applies to all persons requesting leave to proceed IFP." Martinez
V. Kristi Kleaners, Inc., 364 F.3d 1305, 1306 n.l (11th Cir. 2004) (per curiam).
12

''There is no absolute right to be allowed to proceed [IFP] in civil
matters; rather it is a privilege extended to those unable to pay

filing

fees

when

the

action

is

not

frivolous

or

malicious."

Startti V. United States, 415 F.2d 1115, 1116 (5th Cir. 1969) (per

curiam).

An appeal is not taken in good faith if it is frivolous.

See Coppedge v. United States, 369 U.S. 438, 445 (1962).

An appeal

"is frivolous if it is without arguable merit either in law or
fact."

See Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001).

Furthermore, failure to include the prescribed affidavit results
in denial of the applicant's motion.

Patel v. Vinson, No. 1:18-

CV-4833-AT, 2018 WL 6839016, at *2 (N.D. Ga. Nov. 20, 2018).

In

determining whether to grant a motion to proceed on appeal IFP,

trial courts possess "wide discretion" and recognize the privilege
should be extended "sparingly." Martinez v. Kristi Kleaners, Inc.,
364

F.3d

1305,

1306

(11th

Cir.

2004)

(per

curiam)

(citation

omitted).

At the outset.

Plaintiff's affidavit fails to comply with

Rule 24's format requirements in at least one respect.

Plaintiff

substituted the affidavit set forth in the Eleventh Circuit's form

motion with a largely incoherent statement.®

(Compare Mot. to

Appeal IFP, Doc. 119, at 2, with United States Court of Appeals

® Additionally, Plaintiff opted for the plural possessive pronoun "we" instead
of the singular pronoun "I." Plaintiff offers no explanation for the change.
Regardless, it casts doubt on Plaintiff's affidavit. The applicant is required
to swear, himself, to the accuracy of the information provided.
13

for the

Eleventh

Circuit, Mot. for Permission

to Appeal IFP &

Affidavit, http://www.call.uscourts.gov/sites/default/files/court
docs/clk/FormFormaPauperisJUN18.pdf.)

Plaintiff's alteration of

the affidavit is arguably reason to deny his motion to appeal IFP.
Even if the affidavit is sufficient, however. Plaintiff's appeal
is not taken in good faith.
Plaintiff enumerates five issues on appeal.
IFP, at 2.)
Tampa

The first issue questions whether Shadwick v. City of

conflicts

4(b)(1)(D).

(Mot. to Appeal

407

with
U.S.

warrant must . . . be

Federal
345

Rule

(1972).

signed

by a

inapplicable to Plaintiff's case.

of

Rule

Criminal

4(b)(1)(D)

judge."

Rule

Procedure
states,

^^A

4(b)(1)(D) is

As stated in Federal Rule of

Criminal Procedure 1(a)(1): "These rules govern the procedure in
all criminal proceedings in the United States district courts, the
United

States courts of appeals, and the

United States."

Supreme Court of the

The matter Plaintiff complains of was a state

criminal proceeding, not a federal one.

Because Federal Rule of

Criminal Procedure 4(b)(1)(D) is unrelated to state court criminal

proceedings,

deciding

the

enumerated

issue

is

irrelevant

and

frivolous.

As to the second issue, the Court expressly stated in its
March 29, 2019 Order dismissing Plaintiff's Section 1983 claim
under

the

Fourth

Amendment

that

Defendant

McCord

constitutional requirements set forth in Shadwick.
14

met

the

(Mar. 29, 2019

Order, at 12.)

Plaintiff does not seek to appeal this conclusion.

Instead, Plaintiff questions whether Defendant McCord possessed
the authority to issue the arrest warrant.

As described in the

Court's March 29, 2019 Order, local legislation grants clerks of
the Civil Court of Richmond County the authority to issue arrest
warrants.

(Mar. 29, 2019 Order, at 12-13.)

Plaintiff seems to

argue that the local legislation has been repealed, but the Court

finds

no

authority

suggesting

that

to

be

true.

See

Horn

v.

Shepherd, 732 S.E.2d 427, 433 (Ga. 2012) (citing U.S. Bank Nat'l
Ass'n

V. Gordon, 709 S.E.2d 258, 261 (Ga. 2011)) (^^Statutes in

par! materia, i.e., statutes relating to the same subject matter,
must be construed together." (internal quotation marks omitted)).
The local legislation discussed in the March 29, 2019 Order that

applies to the Civil Court of Richmond County instills clerks with
the authority to issue arrest warrants.
Plaintiff's

satisfy

the

third

issue

requirements

is

as

irrelevant

a

to

this

constitutionally

action.

To

satisfactory

warrant, Shadwick requires (1) authorization for the officer to
issue

arrest

detached,

warrants,

and

(3)

the

(2)

the

officer

officer

must

be

must

capable

be

of

neutral

determining

probable cause.

All three requirements are satisfied.

extent

argues

Plaintiff

that

Defendant

McCord

is

and

To the

required

and

failed to receive a commission under the seal of the office of the

Governor

of

Georgia,

that

complaint

15

is

not

recoverable

under

Section 1983.

Section 1983 permits recovery for deprivations of

rights under the Constitution or federal law.

Purported violations

of O.C.G.A. § 15-10-3 are neither.
Plaintiff's

fourth

issue

is

also

frivolous.

Plaintiff

generally cites to Public Law 107-273 without any indication as to
which specific portion of the legislation is applicable.

Although

Public Law 107-273 is known as the ^^21st Century Department of

Justice Appropriations Authorization Act," Plaintiff interprets
the legislation to support his position that a deputy clerk may

not sign an arrest warrant.

The Act cited is federal legislation,

applicable to the federal judiciary, and has no bearing on the
issuance of arrest warrants in state criminal proceedings.

Finally, Plaintiff's fifth issue on appeal is not taken in
good faith.

Plaintiff contends the district court erred in its

findings of fact and dismissal order.
a

district

court

does

not

find

First, as previously noted,

facts

on

a

motion

to

pursuant to Federal Rule of Civil Procedure 12(b)(6).

dismiss

Second,

generally stating that the district court erred is insufficient to
satisfy the requirement that the applicant enumerate the issues on
appeal.

The issues must be described with enough specificity that

the Court may determine

whether the

appeal is frivolous.

See

Nolley V. Nelson, No. 5:15-cv-00075-CAR-MSH, 2017 WL 6618242, at

*2 (M.D. Ga. July 18, 2017); Marshall v. United States, No. 1020482-CIV-ROSENBAUM/WHITE, 2014 WL 12489600, at *2 (S.D. Fla. Mar.

16

31, 2014); United States v. One 2000 Land Rover Discovery II, No.
07-00382-CG-C, 2008 WL 4809440, at *2 (S.D. Ala. Oct. 24, 2008).
Having concluded that all issues Plaintiff enumerates in his

motion are frivolous, the Court certifies that this appeal is not
taken in good faith.

III. CONCLUSION

Based

on

the

foregoing,

IT

IS

HEREBY

ORDERED

that

(1)

Plaintiff's motion pursuant to Federal Rule of Civil Procedure 60
(Doc. 114) is DENIED; (2) Plaintiff's motion pursuant to Federal
Rule of Civil Procedure 52 (Doc. 115) is DENIED; (3) Plaintiff's

motion

for

judicial

notice

(Doc.

117)

is

DENIED;

and

(4)

Plaintiff's motion to proceed on appeal IFP (Doc. 119) is DENIED.
Pursuant to Federal Rule of Appellate Procedure 24(a)(4), the Clerk
is DIRECTED to transmit this Order to the Eleventh Circuit Court

of Appeals.

This case remains CLOSED.

ORDER ENTERED at Augusta, Georgia, this /Q day of October,
2019.

J. ^AliD^«Z. HALL, CHIEF JUDGE

UNITED^TATES DISTRICT COURT
SUUTHERN district of GEORGIA

17