Flowers v. Shaw et al

Filing 39

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court GRANT Defendant Brook's 33 MOTION for Summary Judgment and DISMISS Defendants Lane's and Pruitt's 35 MOTION for Summary Judgment and DISMISS Plaintiff's claims against these three Defendants. I also RECOMMEND the Court DISMISS without prejudice Plaintiff's claims against Chitty and McCullough, and DIRECT the Clerk to enter the appropriate judgment of dismissal and to CLOSE this case. I further RECOMMEN D that the Court DENY Plaintiff leave to proceed in forma pauperis on appeal. The Court ORDERS any party seeking to object to this Report and Recommendation to file specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered (Objections to R&R due by 5/6/2016). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 4/22/2016. (ca)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION

ANTHONY FLOWERS,
Plaintiff,

CIVIL ACTION NO.: 2:14-cv-138

v.
LT. MIKE LANE; SGT. JONATHAN
MCCULLOUGH; SHAE PHILLIPS PRUITT;
TY BROOKS; and WILLIAM CHITTY,
Defendants.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff Anthony Flowers (“Plaintiff”), who is currently incarcerated at Johnson State
Prison in Wrightsville, Georgia, filed this cause of action pursuant to 42 U.S.C. § 1983
contesting the events surrounding his arrest in Jesup, Georgia. (Doc. 1.) On October 15, 2015,
Defendant Ty Brooks and Defendants Mike Lane and Shae Pruitt filed separate Motions for
Summary Judgment. (Docs. 33, 35.) The Clerk of Court mailed Notices to Plaintiff advising
him of the filed Motions for Summary Judgment and that responses to these Motions were to be
filed by November 7, 2015. (Docs. 34, 37.) These Notices further advised Plaintiff that:
1.
If you do not timely respond to this motion . . . , the consequence may be
that the Court will deem the motion unopposed, and the Court may enter
judgment against you.
2.
If your opponent’s Statement of Material Facts sets forth facts supported
by evidence, the Court may assume that you admit all such facts unless you
oppose those facts with your own Statement of Material Facts which also sets
forth facts supported by evidence.
3.
If a summary judgment motion is properly supported, you may not rest
on the allegations in your [Complaint] alone.

(Docs. 34, 37.) Plaintiff filed no Response to the respective Defendants’ Motions for Summary
Judgment, and the Court received no indication these Notices or Defendants’ Motions were
undeliverable. 1 However, “the district court cannot base the entry of summary judgment on the
mere fact that the motion [is] unopposed but, rather, must consider the merits of the motion.”
United States v. One Piece of Real Property Located at 5800 SW 74th Ave., Miami, Fla., 363
F.3d 1099, 1101 (11th Cir. 2004) (citation omitted). Specifically, the court “must still review the
movant’s citations to the record to determine if there is, indeed, no genuine issue of material
fact.” Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1303 (11th Cir. 2009) (citation omitted). Based
on the reasons which follow, I RECOMMEND the Court GRANT Defendant Brooks’
unopposed Motion and GRANT Defendants Lane’s and Pruitt’s unopposed Motion. I also
RECOMMEND the Court DISMISS without prejudice Plaintiff’s claims against Chitty and
McCullough. I further RECOMMEND the Court DISMISS Plaintiff’s Complaint, CLOSE this
case, and DENY Plaintiff leave to proceed in forma pauperis on appeal.
BACKGROUND 2
On the night of December 29, 2012, Mark Lane, William Chitty, Jonathan McCullough,
and Shae Pruitt, who were employed with the City of Jesup Police Department, and Ty Brooks, a
Georgia State Trooper, went to Plaintiff’s residence in Jesup, Georgia, to execute an arrest
warrant on Plaintiff. (Doc. 1, p. 15.) Plaintiff asserts these law enforcement officers did not
announce their presence at his home before they breached the side door of Plaintiff’s residence.
According to Plaintiff, Defendant Lane entered his home first, followed by Chitty, McCullough,
1

In fact, Plaintiff has failed to file anything in this case since December 18, 2014. (Docs. 10, 11.)

2

The recited allegations in this “Background” Section are taken from Plaintiff’s Complaint and are
viewed in the light most favorable to Plaintiff, the non-moving party. However, this is not to say the
Court accepts the allegations contained in Plaintiff’s Complaint as true. Defendants offer their own
version of events through their Motions and Statements of Material Fact, to which Plaintiff failed to offer
a response. Defendants’ undisputed material facts are set forth in Section III of this Report.

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Brooks, and Pruitt. (Id. at p. 16.) Plaintiff asserts he immediately extended his arms and hands
over his head once he realized law enforcement officers were in his home. Plaintiff also alleges
Chitty pointed his weapon at him and, without provocation, began firing at Plaintiff. Plaintiff
sustained injuries after being shot in his chest and right arm. (Id.)
Plaintiff’s Complaint was ordered to be served upon Lane, McCullough, Chitty, Pruitt,
and Brooks for excessive use of force and failure to intervene, in violation of the Fourth
Amendment. (Doc. 6.)
DISCUSSION
Defendants Brooks, Lane, and Pruitt contend Plaintiff cannot sustain a failure to
intervene claim against them. Defendants Brooks, Lane, and Pruitt also contend they are entitled
to qualified immunity. In support of his Motion for Summary Judgment, Defendant Brooks
relies on his Brief in Support, a Statement of Material Facts, a copy of the transcript from
Plaintiff’s deposition, and his Declaration. Defendants Lane and Pruitt rely on their Brief in
Support, their Statement of Material Facts, and the affidavit of Angie Ryals and attached
documentation.
As set forth below, the Court agrees that Plaintiff fails to establish a genuine dispute as to
his claims, and Defendants’ Motions are due to be granted as a result.
I.

Standard of Review
Summary judgment “shall” be granted if “the movant shows that there is no genuine

dispute as to any material fact and that the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “A dispute about a material fact is genuine and summary judgment is
inappropriate if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party. However, there must exist a conflict in substantial evidence to pose a jury

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question.” Hall v. Sunjoy Indus. Grp., Inc., 764 F. Supp. 2d 1297, 1301 (M.D. Fla. 2011) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and (Verbraeken v. Westinghouse Elec.
Corp., 881 F.2d 1041, 1045 (11th Cir. 1989)).
The moving party bears the burden of establishing that there is no genuine dispute as to
any material fact and that he is entitled to judgment as a matter of law. See Williamson Oil Co.,
Inc. v. Philip Morris USA, 346 F.3d 1287, 1298 (11th Cir. 2003). Specifically, the moving party
must identify the portions of the record which establish that there are no “genuine dispute[s] as to
any material fact and the movant is entitled to judgment as a matter of law.” Moton v. Cowart,
631 F.3d 1337, 1341 (11th Cir. 2011). When the nonmoving party would have the burden of
proof at trial, the moving party may discharge his burden by showing that the record lacks
evidence to support the nonmoving party’s case or that the nonmoving party would be unable to
prove his case at trial. See id. (citing Celotex v. Catrett, 477 U.S. 317, 322–23 (1986)). In
determining whether a summary judgment motion should be granted, a court must view the
record and all reasonable inferences that can be drawn from the record in a light most favorable
to the nonmoving party. Peek-A-Boo Lounge of Bradenton, Inc. v. Manatee Cty., Fla., 630 F.3d
1346, 1353 (11th Cir. 2011).
II.

Plaintiff’s Claims Against Chitty and McCullough
As noted above, the Court directed the United States Marshal to serve Plaintiff’s

Complaint upon the captioned Defendants by Order dated December 1, 2014. (Doc. 6.) In
accordance with that Order, the Clerk of Court prepared USM-285 forms, and the Marshals
Service mailed a copy of Plaintiff’s Complaint and Waiver of Service to the captioned
Defendants. However, the documents sent to Defendants Chitty and McCullough were returned
unexecuted and were refused because Chitty and McCullough were no longer working at the

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Jesup Police Department. (Docs. 14, 15.) The Court directed Plaintiff to provide the Court with
adequate addresses where Chitty and McCullough could be served within twenty-one days of the
January 14, 2015, Order. (Doc. 17.) Plaintiff was forewarned that his failure to comply with that
Order may result in the dismissal of his claims against Chitty and McCullough. (Id. at p. 2.)
Plaintiff failed to respond to this Court’s Order.
A district court may dismiss a plaintiff’s claims sua sponte pursuant to either Federal
Rule of Civil Procedure 41(b) (“Rule 41(b)”) or the court’s inherent authority to manage its
docket. Link v. Wabash R.R. Co., 370 U.S. 626 (1962); 3 Coleman v. St. Lucie Cty. Jail, 433 F.
App’x 716, 718 (11th Cir. 2011) (citing Fed. R. Civ. P. 41(b) and Betty K Agencies, Ltd. v. M/V
MONADA, 432 F.3d 1333, 1337 (11th Cir. 2005)). In particular, Rule 41(b) allows for the
involuntary dismissal of a plaintiff’s claims where he has failed to prosecute those claims,
comply with the Federal Rules of Civil Procedure or local rules, or follow a court order. Fed. R.
Civ. P. 41(b); see also Coleman, 433 F. App’x at 718; Sanders v. Barrett, No. 05-12660, 2005
WL 2640979, at *1 (11th Cir. Oct. 17, 2005) (citing Kilgo v. Ricks, 983 F.2d 189, 192 (11th Cir.
1993)); cf. Local R. 41.1(b) (“[T]he assigned Judge may, after notice to counsel of record, sua
sponte . . . dismiss any action for want of prosecution, with or without prejudice[,] . . . [based on]
willful disobedience or neglect of any order of the Court.”) (emphasis omitted)). Additionally, a
district court’s “power to dismiss is an inherent aspect of its authority to enforce its orders and
ensure prompt disposition of lawsuits.” Brown v. Tallahassee Police Dep’t, 205 F. App’x 802,
802 (11th Cir. 2006) (quoting Jones v. Graham, 709 F.2d 1457, 1458 (11th Cir. 1983)).
It is true that dismissal with prejudice for failure to prosecute is a “sanction . . . to be
utilized only in extreme situations” and requires that a court “(1) conclud[e] a clear record of
3

In Wabash, the Court held that a trial court may dismiss an action for failure to prosecute “even without
affording notice of its intention to do so.” 370 U.S. at 633.

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delay or willful contempt exists; and (2) mak[e] an implicit or explicit finding that lesser
sanctions would not suffice.” Thomas v. Montgomery Cty. Bd. of Educ., 170 F. App’x 623,
625–26 (11th Cir. 2006) (quoting Morewitz v. West of Eng. Ship Owners Mut. Prot. & Indem.
Ass’n (Lux.), 62 F.3d 1356, 1366 (11th Cir. 1995)); see also Taylor v. Spaziano, 251 F. App’x
616, 619 (11th Cir. 2007) (citing Morewitz, 62 F.3d at 1366). By contrast, dismissal without
prejudice for failure to prosecute is not an adjudication on the merits, and, therefore, courts are
afforded greater discretion in dismissing claims in this manner. Taylor, 251 F. App’x at 619;
see also Coleman, 433 F. App’x at 719; Brown, 205 F. App’x at 802–03.
While the Court exercises its discretion to dismiss cases with caution, dismissal of
Plaintiff’s claims against Chitty and McCullough without prejudice is warranted. See Coleman,
433 F. App’x at 719 (upholding dismissal without prejudice for failure to prosecute Section 1983
complaint, where plaintiff did not respond to court order to supply defendant’s current address
for purpose of service); Taylor, 251 F. App’x at 620–21 (upholding dismissal without prejudice
for failure to prosecute because plaintiffs insisted on going forward with deficient amended
complaint rather than complying, or seeking an extension of time to comply, with court’s order
to file second amended complaint); Brown, 205 F. App’x at 802–03 (upholding dismissal
without prejudice for failure to prosecute Section 1983 claims, where plaintiff failed to follow
court order to file amended complaint and court had informed plaintiff that noncompliance could
lead to dismissal). Plaintiff failed to comply with this Court’s January 14, 2015, Order and was
forewarned that his failure to comply with the Court’s directives would result in the dismissal of
his claims against Defendants Chitty and McCullough. Additionally, the Court advised Plaintiff
in its December 1, 2014, Order that he has the responsibility for pursuing this case. (Doc. 6, p.
7.) Despite that directive, Plaintiff has not filed anything in this case since December 18, 2014.

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Thus, the Court should DISMISS Plaintiff’s claims against Chitty and McCullough for failure to
follow the Court’s Orders and failure to prosecute.
III.

Plaintiff’s Claims Against Defendants Brooks, Lane, and Pruitt 4
Defendants assert Plaintiff was involved in an altercation with his brother on December

28, 2012, and an arrest warrant was issued against Plaintiff, charging him with aggravated
assault. 5 (Doc. 33-1, p. 1.) Defendants, along with Chitty and McCullough, went to Plaintiff’s
residence late at night on December 29, 2012, in an attempt to arrest Plaintiff. (Id. at p. 2.) All
of the lights were off in Plaintiff’s home, as he was using only candles and a hurricane lamp for
light. Defendants contend that they saw what appeared to be flames inside the house. In light of
Plaintiff having threatened to kill himself and the presence of flames inside the house, the
officers decided to enter Plaintiff’s house based on safety concerns. (Id.; Doc. 35-1, p. 8.) The
officers were able to enter the carport of Plaintiff’s home, but there was a second door preventing
them from going directly into Plaintiff’s home. The officers were able to break the glass on the
second door to unlock it and entered Plaintiff’s home. (Doc. 35-1, pp. 8–9.)
Flowers’ house was reminiscent of an episode of “Hoarders”, filled with “boxes of junk”
stacked in the living and dining room area with “just little pathways” for a person to walk. (Doc.
33-3, p. 9.) Defendant Lane entered into Plaintiff’s living room first, followed by Chitty.
Defendant Lane moved to the left side of the entryway, and Chitty entered and moved to the
right. Once Plaintiff realized officers were inside his house, he stood up from his recliner, raised
4

The Court shall address the separate Motions together, as Plaintiff’s claims against these Defendants
sound in the same legal analysis. In addition, the Court often refers to Brooks, Lane, and Pruitt
collectively as “Defendants” in this Section, unless otherwise noted.

5

Defense counsel provided the Court with a more thorough picture of the events of December 28 and 29,
2012, but many of the facts set forth in the Briefs are relevant to Plaintiff’s claims of use of force at the
hands of Chitty. The Court should dismiss that claim for the reasons stated above. Thus, I have limited
the discussion to facts germane to the issue of whether Defendants failed to intervene in Chitty’s use of
force on Plaintiff’s behalf, in violation of the Fourth Amendment.

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his hands and arms over his head, and stood behind his recliner. (Doc. 33-1, p. 2; Doc. 33-3,
p. 10.) Defendant Lane tripped over one of the boxes littering Plaintiff’s floor and grabbed
Chitty’s arm in an attempt to steady himself. Immediately thereafter, Plaintiff felt a burning in
his chest and right arm and realized Chitty had shot him with his weapon. (Doc. 33-1, p. 3;
Doc. 35-1, p. 9.) Chitty did not say anything before he fired his weapon, did not provide a
warning before he fired, and was not ordered to fire his weapon. (Doc. 33-1, p. 3; Doc. 35-1,
p. 10.) Defendants Brooks and Pruitt were not in the room when Chitty fired his weapon.
(Doc. 33-1, p. 3; Doc. 35-1, p. 13.) By all accounts, the shooting was over very quickly.
(Doc. 33-1, p. 3; Doc. 33-3, pp. 10, 11.)
Plaintiff’s claims against these Brooks, Lane, and Pruitt require an assessment of whether
these Defendants are liable to Plaintiff for an alleged failure to intervene in Chitty’s use of force
against Plaintiff.

In addition, Plaintiff’s claims against Defendant Lane require, as a

precautionary measure, a discussion of whether he failed to stop Chitty’s use of force. 6
A.

Failure to Intervene Claims

“[A]n officer can be liable for failing to intervene when another officer uses excessive
force.” Priester v. City of Riviera Beach, 208 F.3d 919, 924 (11th Cir. 2000) (“[I]f a police
officer, whether supervisory or not, fails or refuses to intervene when a constitutional violation
such as an unprovoked beating takes place in his presence, the officer is directly liable[.]”)
(alterations in original) (citing Ensley v. Soper, 142 F.3d 1402, 1407–08 (11th Cir. 1998)). “This
liability, however, only arises when the officer is in a position to intervene and fails to do so.”
Id.; see also Keating v. City of Miami, 598 F.3d 753, 764 (11th Cir. 2010) (explaining that a
direct failure to intervene claim “requir[es] the allegations to include facts showing the necessity
6

The Court addresses any putative claims against Defendant Lane, as Chitty’s supervisor, with
Defendants Brooks and Pruitt and separately.

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or real opportunity for the defendant-officers to intervene in a fellow officer’s unlawful
conduct”). When events occur so quickly he or she cannot intervene, an officer is not liable for
another’s constitutional violation. Fils v. City of Aventura, 647 F.3d 1272, 1290 n.21 (11th Cir.
2011) (citing Brown v. City of Huntsville, Ala., 608 F.3d 724, 740 n.25 (11th Cir. 2010)).
Here, Defendant Brooks declared he was in the kitchen of Plaintiff’s home when he heard
a gun firing in another room of the home. (Doc. 33-4, p. 2.) Additionally, Defendant Pruitt
asserted in her report, written within a few hours of this incident, that she was also in the kitchen
trying to extinguish some of the flames in Plaintiff’s home when she heard the shots being fired.
(Doc. 36-1, p. 4.) Based on the diagram Plaintiff drew during his deposition, the kitchen of
Plaintiff’s home does not open up to the dining/living room area in which Plaintiff asserts he,
Lane, and Chitty were standing. (Doc. 33-3, p. 24.) Thus, Defendant Brooks and Pruitt were not
in the same room as Plaintiff, Lane, and Chitty, and Defendants Brooks and Pruitt did not have
an opportunity to see into the area where these three men were standing. In fact, Plaintiff
testified during his deposition that Defendants Lane and Chitty were the only two people who
entered into the dining/living room area. (Id. at p. 9.) In addition, Defendant Brooks declared he
did not enter the room where Plaintiff was until after Plaintiff was shot. Defendant Brooks also
declared he had no prior knowledge that Chitty was going to fire his weapon until he heard the
gun firing. (Doc. 33-4, p. 2.)
The uncontroverted evidence before the Court reveals that Defendants Brooks and Pruitt
were not in a position to intervene in Chitty’s use of force and, thus, cannot be held liable for
their failure to intervene on Plaintiff’s behalf. Moreover, when viewing the facts and evidence in
the light most favorable to Plaintiff and assuming Defendants Brooks and Pruitt had been in a
position to intervene on Plaintiff’s behalf (i.e., these Defendants were able to see into Plaintiff’s

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dining/living room area from the kitchen), Defendants Brooks and Pruitt did not have the
opportunity to intervene on Plaintiff’s behalf in Chitty’s use of force.

By Plaintiff’s own

admission during his deposition and description of the use of force, he felt a “burning impact”
and heard a “rapid pop, pop, pop, pop” that was “over in a second[.]” (Doc. 33-3, p. 11.)
Accordingly, the undisputed evidence shows Chitty’s use of force occurred so quickly that
Defendants Brooks and Pruitt did not have the opportunity to intervene, even if they had been in
a physical position to do so. Fils, 647 F.3d at 1290 n.21.
By this same token, Defendant Lane also did not have the opportunity to intervene in
Chitty’s use of force, even if it is undisputed that he was in the room with Chitty. Again, the
undisputed evidence indicates that the use of force was over very quickly, and there is no
evidence that Defendant Lane (or any other officer at the scene) had any time to react to Chitty’s
use of force or to otherwise intervene on Plaintiff’s behalf. The Court should GRANT these
portions of Defendants’ Motions and DISMISS Plaintiff’s claims against Defendants Brooks and
Pruitt in their entirety.
B.

Putative Failure to Stop Claim Against Defendant Lane

Defendant Lane held the rank of lieutenant at the time giving rise to Plaintiff’s claims,
and it appears Defendant Lane was Chitty’s supervisor (or at least the highest ranking person on
the scene) on December 29, 2012. Accordingly, this Court must determine whether Defendant
Lane, as Chitty’s supervisor, could have stopped Chitty’s use of force against Plaintiff.
Supervisors cannot be held liable under Section 1983 on the basis of vicarious liability or
respondeat superior.

Nonetheless, “supervisors are liable under § 1983 either when the

supervisor personally participates in the alleged constitutional violation or when there is a causal
connection between actions of the supervising official and the alleged constitutional violation.”

10

Elmore v. Fulton Cty. Sch. Dist., 605 F. App’x 906, 917 (11th Cir. 2015). A failure to stop claim
under a theory of supervisory liability only requires that the supervisor (1) have the ability to
prevent or discontinue a known constitutional violation by exercising his or her authority over
the subordinate who commits the constitutional violation, and (2) subsequently fails to exercise
that authority to stop it. Gonzalez v. Reno, 325 F.3d 1228, 1234 (11th Cir. 2003) (requiring only
allegations of a “causal connection between actions of the supervising official and the alleged
constitutional violation”). “The difference between a direct failure to intervene claim and a
failure to stop claim under a theory of supervisory liability lies in the position and authority of
the defendant with respect to the person who commits the constitutional violation.” Keating, 598
F.3d at 765.
As noted above, it appears that Defendant Lane was in charge of the scene on December
29, 2012. However, the undisputed evidence before the Court shows that no one in Plaintiff’s
house knew Chitty was going to shoot Plaintiff until after he shot Plaintiff and that Defendant
Lane did not order Chitty to shoot Plaintiff. (See, e.g., Doc. 33-3, p. 16.) To the extent
Defendant Lane had supervisory authority over Chitty, there is no evidence that Defendant Lane
failed to exercise that authority to stop Chitty’s use of force. In fact, as discussed in the
preceding subsection, Chitty’s use of force happened so quickly that Defendant Lane would not
have even had the opportunity to exercise his supervisory authority to stop the use of force.
Additionally, the uncontroverted evidence reveals that Defendant Lane did not even point his
gun at Plaintiff or use any force against him whatsoever. (Id. at p. 10.)
In short, Plaintiff fails to create a genuine dispute as to any fact material to his claims
against Defendant Lane. Plaintiff presents no evidence that Defendant Lane was personally
involved in the use of force incident or that Defendant Lane was in a position to stop Chitty’s use

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of force and failed to do so. Consequently, the Court should GRANT this portion of Defendants
Lane’s and Pruitt’s Motion and DISMISS Plaintiff’s claims against Defendant Lane in their
entirety.
Plaintiff fails to establish a genuine dispute as to facts material to his Fourth Amendment
claims against Defendants Brooks, Pruitt, and Lane. Thus, it is unnecessary to address the
remaining portions of Defendants’ Motions. Martinez v. Burns, 459 F. App’x 849, 851 (11th
Cir. 2012) (a qualified immunity defense need not be addressed if the plaintiff cannot sustain an
underlying constitutional claim). 7
IV.

Leave to Appeal In Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. Though Plaintiff

has, of course, not yet filed a notice of appeal, it is proper to address these issues in the Court’s
order of dismissal. See Fed. R. App. P. 24(a)(3) (trial court may certify that appeal of party
proceeding in forma pauperis is not taken in good faith “before or after the notice of appeal is
filed”).
An appeal cannot be taken in forma pauperis if the trial court certifies that the appeal is
not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this
context must be judged by an objective standard. Busch v. Cty. of Volusia, 189 F.R.D. 687, 691
(M.D. Fla. 1999). A party does not proceed in good faith when he seeks to advance a frivolous
claim or argument. See Coppedge v. United States, 369 U.S. 438, 445 (1962). A claim or
argument is frivolous when it appears the factual allegations are clearly baseless or the legal
theories are indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v.

7

Defendants Lane and Pruitt made a preemptive argument that Plaintiff cannot sustain a deliberate
indifference claim against them in anticipation of Plaintiff’s response to their Motion. Plaintiff, of course,
failed to respond to this Motion, and the Court did not serve Plaintiff’s Complaint on this basis.
Accordingly, it is unnecessary to address this ground for summary judgment.

12

Gross, 984 F.2d 392, 393 (11th Cir. 1993). Or, stated another way, an in forma pauperis action
is frivolous and, thus, not brought in good faith, if it is “without arguable merit either in law or
fact.” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown v. United States,
Nos. 407CV085, 403CR001, 2009 WL 307872, at *1–2 (S.D. Ga. Feb. 9, 2009).
Based on the above analysis of Plaintiff’s action, there are no non-frivolous issues to
raise on appeal, and an appeal would not be taken in good faith. Thus, the Court should DENY
Plaintiff in forma pauperis status on appeal.
CONCLUSION
For the above-stated reasons, it is my RECOMMENDATION that the Court GRANT
Defendant Brook’s Motion for Summary Judgment and Defendants Lane’s and Pruitt’s Motion
for Summary Judgment and DISMISS Plaintiff’s claims against these three Defendants. I also
RECOMMEND the Court DISMISS without prejudice Plaintiff’s claims against Chitty and
McCullough, and DIRECT the Clerk of Court to enter the appropriate judgment of dismissal
and to CLOSE this case. I further RECOMMEND that the Court DENY Plaintiff leave to
proceed in forma pauperis on appeal.
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the Complaint must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.

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Upon receipt of Objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final
judgment entered by or at the direction of a District Judge. The Clerk of Court is DIRECTED
to serve a copy of this Report and Recommendation upon the parties.
SO ORDERED and REPORTED and RECOMMENDED, this 22nd day of April,
2016.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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