Fredrick v. The State of Georgia

Filing 5

REPORT AND RECOMMENDATIONS of the Magistrate Judge that this action be DISMISSED and that Fredrick be DENIED leave to appeal in forma pauperis re 1 Petition for Writ of Habeas Corpus. 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 1/17/2017). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 1/3/2017. (ca)

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

DANTE G. FREDRICK,
Petitioner,

CIVIL ACTION NO.: 2:15-cv-173

v.
STATE OF GEORGIA,
Respondent.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner, Dante G. Fredrick (“Fredrick”), who is currently housed at Valdosta State
Prison in Valdosta, Georgia, has submitted a Petition for a writ of mandamus.

(Doc. 1.)

Fredrick also filed a Motion to Proceed in Forma Pauperis. (Doc. 2.) For the reasons which
follow, the Court DENIES Fredrick’s Motion to Proceed in Forma Pauperis, and I
RECOMMEND that the Court DISMISS his Petition.

Additionally, Fredrick should be

DENIED leave to appeal in forma pauperis.
BACKGROUND
Fredrick filed his Complaint against the State of Georgia on December 11, 2015.
(Doc. 1.) In his Complaint, Fredrick takes issue with his convictions obtained in the Glynn
County Superior Court and State Court. Fredrick maintains that that the Glynn County Clerk’s
Office, the Judges of Glynn County, the District Attorney’s Office, and the Solicitor General’s
Office have failed to take actions requested by him and related to his convictions. Fredrick
alleges that these various actors have violated his rights to due process and he has “13
convictions in [the state courts] against the policy of law.” (Id. at p. 2.) He petitions this Court

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to issue a writ of mandamus ordering state officials to “immediately cease these irreparable
injurys [sic] and violation of the Constitution against petitioner.” (Id. at p. 6.)
STANDARD OF REVIEW
Fredrick seeks to bring this action in forma pauperis. Under 28 U.S.C. § 1915(a)(1), the
Court may authorize the filing of a civil lawsuit without the prepayment of fees if the plaintiff
submits an affidavit that includes a statement of all of his assets and shows an inability to pay the
filing fee and also includes a statement of the nature of the action which shows that he is entitled
to redress. Even if the plaintiff proves indigence, the Court must dismiss the action if it is
frivolous or malicious, or fails to state a claim upon which relief may be granted. 28 U.S.C. §§
1915(e)(2)(B)(i)–(ii). Additionally, pursuant to 28 U.S.C. § 1915A, the Court must review a
complaint in which a prisoner seeks redress from a governmental entity. Upon such screening,
the Court must dismiss a complaint, or any portion thereof, that is frivolous or malicious, or fails
to state a claim upon which relief may be granted or which seeks monetary relief from a
defendant who is immune from such relief. 28 U.S.C. § 1915A(b).
When reviewing a Complaint on an application to proceed in forma pauperis, the Court is
guided by the instructions for pleading contained in the Federal Rules of Civil Procedure. See
Fed. R. Civ. P. 8 (“A pleading that states a claim for relief must contain [among other things] . . .
a short and plain statement of the claim showing that the pleader is entitled to relief.”); Fed. R.
Civ. P. 10 (requiring that claims be set forth in numbered paragraphs, each limited to a single set
of circumstances). Further, a claim is frivolous under Section 1915(e)(2)(B)(i) “if it is ‘without
arguable merit either in law or fact.’” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002)
(quoting Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001)).

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Whether a complaint fails to state a claim under Section 1915(e)(2)(B)(ii) is governed by
the same standard applicable to motions to dismiss under Federal Rule of Civil
Procedure 12(b)(6). Thompson v. Rundle, 393 F. App’x 675, 678 (11th Cir. 2010). Under that
standard, this Court must determine whether the complaint contains “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A
plaintiff must assert “more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not” suffice. Twombly, 550 U.S. at 555. Section 1915 also
“accords judges not only the authority to dismiss a claim based on an indisputably meritless legal
theory, but also the unusual power to pierce the veil of the complaint’s factual allegations and
dismiss those claims whose factual contentions are clearly baseless.” Bilal, 251 F.3d at 1349
(quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)).

In its analysis, the Court will abide by the long-standing principle that the pleadings of
unrepresented parties are held to a less stringent standard than those drafted by attorneys and,
therefore, must be liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972); Boxer X v.
Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) (“Pro se pleadings are held to a less stringent
standard than pleadings drafted by attorneys.”) (emphasis omitted) (quoting Hughes v. Lott, 350
F.3d 1157, 1160 (11th Cir. 2003)). However, Fredrick’s unrepresented status will not excuse
mistakes regarding procedural rules. McNeil v. United States, 508 U.S. 106, 113 (1993) (“We
have never suggested that procedural rules in ordinary civil litigation should be interpreted so as
to excuse mistakes by those who proceed without counsel.”).

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DISCUSSION 1
I.

Dismissal for Lack of Jurisdiction
Fredrick brings this action as a petition for a writ of mandamus. However, federal courts

can only issue writs of mandamus to “compel an officer or employee of the United States or any
agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. Federal courts do not
have the jurisdiction to issue writs of mandamus directing state officials in the performance of
their duties.

Lawrence v. Miami-Dade Cty. State Attorney Office, 272 Fed. App’x. 781

(11th Cir. 2008) (“Because the only relief Lawrence sought was a writ of mandamus compelling
action from state officials, not federal officials, the district court lacked jurisdiction to grant relief
and did not err in dismissing the petition.”); Moye v. Clerk, DeKalb Cty. Super. Ct., 474 F.2d
1275, 1276 (5th Cir. 1973). 2 Therefore, federal district courts have repeatedly held that they lack
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In addition to the reasons set forth herein, Fredrick’s petition to proceed in forma pauperis can also be
denied because he 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 . . . .” 28 U.S.C.
§ 1915(g). Indeed, Fredrick has brought numerous actions in this Court asserting the same or similar
claims that he asserts in this case. Petitions for Mandamus against either federal officials or against state
officials qualify as “civil actions” under 28 U.S.C. § 1915(g). Bure v. Miami-Dade Cty. Corr. & Rehab.
Dep’t, No. 08-23331-CIV, 2009 WL 35238, at *4 (S.D. Fla. Jan. 5, 2009) (citing In Re: Billy D. Jacobs,
a/k/a Ya qub, 213 F.3d 289 (5th Cir. 2000); Green v. Nottingham, 90 F.3d 415, 418 (10th Cir. 1996); In
Re: Michael C. Washington, 122 F.3d 1345 (10th Cir. 1997); Hicks v. Brysch, 989 F. Supp. 797 (W.D.
Tex. 1997)); see also In re Smith, 114 F.3d 1247, 1250 (D.C. Cir. 1997) (“[I]t would defeat the purpose of
the PLRA if a prisoner could evade its requirements simply by dressing up an ordinary civil action as a
petition for mandamus[.]”); Green, 90 F.3d at 418 (“Allowing prisoners to continue filing actions as they
had before enactment of the [PLRA], merely by framing pleadings as petitions for mandamus would
allow a loophole Congress surely did not intend in its stated goal of ‘discourag [ing] frivolous and abusive
prison lawsuits.’”); In re Nagy, 89 F.3d 115, 117 (2d Cir. 1996) (“[I]f a prisoner, contemplating the filing
of a complaint . . . under 42 U.S.C. § 1983, decided to avoid liability for filing fees and instead sought
comparable relief by applying for a writ of mandamus . . . the PLRA provisions should normally apply.”);
Tate v. Price, No. CIV A 2:09CV221-TMH, 2009 WL 1034965, at *1 (M.D. Ala. Apr. 16, 2009) (“claims
are civil in nature and governed by the provisions of the PLRA which prevent [petitioner] from
proceeding in forma pauperis on these claims due to his violation of the three-strikes provision.”);
Hernandez v. Century Corr. Inst., No. 307CV185/LAC/EMT, 2007 WL 2376280, at *2 (N.D. Fla. Aug.
15, 2007).
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In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), the Eleventh Circuit adopted as
binding precedent all Fifth Circuit decisions delivered on or before September 30, 1981.
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jurisdiction to issue a writ of mandamus as to state officials. See, e.g., Church of Scientology of
Ga., Inc. v. City of Sandy Springs, 843 F. Supp. 2d 1328, 1380 (N.D. Ga. 2012) (“Federal district
courts do not have the authority to issue writs of mandamus to direct state officials in the
performance of their duties.”).

Because Fredrick only names the State of Georgia in his

Complaint and asks this Court to order state officials to take action, the Court should DISMISS
his claims for lack of jurisdiction.
II.

Heck v. Humphrey and Rooker-Feldman
Fredrick’s Complaint centers on his prior convictions in Glynn County Superior Court

and State Court. However, the Complaint indicates that his conviction has not been reversed,
expunged, invalidated, called into question by a federal court’s issuance of the writ of habeas
corpus, or otherwise overturned.

(Doc. 1.)

As Fredrick is seeking relief based on these

convictions, this Court is precluded from reviewing his claims by the decision in Heck v.
Humphrey, 512 U.S. 477 (1994).
In Heck, a state prisoner filed a Section 1983 damages action against the prosecutors and
investigator in his criminal case for their actions which resulted in his conviction. The Supreme
Court analogized the plaintiff’s claim to a common-law cause of action for malicious
prosecution, which requires as an element of the claim that the prior criminal proceeding was
terminated in favor of the accused. 512 U.S. at 484. The Supreme Court reasoned:
We think the hoary principle that civil tort actions are not appropriate vehicles for
challenging the validity of outstanding criminal judgments applies to § 1983
damages actions that necessarily require the plaintiff to prove the unlawfulness of
his conviction or confinement, just as it had always applied to actions for
malicious prosecution (footnote omitted).
We hold that, in order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid, (footnote omitted), a
§ 1983 plaintiff must prove that the conviction or sentence has been reversed on
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direct appeal, expunged by executive order, declared invalid by a state tribunal
authorized to make such determination, or called into question by a federal court’s
issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages
bearing that relationship to a conviction or sentence that has not been so
invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks
damages in a § 1983 suit, the district court must consider whether a judgment in
favor of the plaintiff would necessarily imply the invalidity of his conviction or
sentence; if it would, the complaint must be dismissed unless the plaintiff can
demonstrate that the conviction or sentence has already been invalidated.
Id. at 486–87 (emphasis added).
Under Heck, a plaintiff who is attempting “to recover damages for allegedly
unconstitutional conviction or imprisonment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid,” must make a showing that his
conviction, sentence, or other criminal judgment was reversed, expunged, declared invalid by an
appropriate state tribunal, or called into question in a federal court’s issuance of a writ of habeas
corpus. Id. If a plaintiff fails to make this showing, then he cannot bring an action under
Section 1983. Id. at 489. Furthermore, to the extent a plaintiff contends that a favorable ruling
on his Section 1983 claims would not invalidate his conviction, sentence, confinement, or other
criminal judgment, the burden is on the plaintiff to prove this contention in order for his claims
to proceed. Id. at 487.
Although Heck involved a claim brought under 42 U.S.C. § 1983 for money damages,
Heck’s holding has been extended to claims seeking declaratory or injunctive relief as well as
money damages. See Wilkinson v. Dotson, 544 U.S. 74, 81–82 (2005); Abella v. Rubino, 63
F.3d 1063, 1066 (11th Cir. 1995); see also Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)
(“[W]e hold today that when a state prisoner is challenging the very fact or duration of his
physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate
release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas

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corpus.”); Desravines v. Fla. Dep’t of Fin. Servs., No. 6:11-CV-235-ORL-22, 2011 WL
2292180, at *3 (M.D. Fla. May 23, 2011) report and recommendation adopted by No. 6:11-CV235-ORL-22, 2011 WL 2222170 (M.D. Fla. June 8, 2011) (citing Gray v. Kinsey, No. 3:09-cv324/LC/MD, 2009 WL 2634205, at *9 (N.D. Fla. Aug. 25, 2009) (“Under this standard, it is not
unusual for a § 1983 claim to be dismissed for failure to satisfy Heck’s favorable termination
requirement.”); Domotor v. Wennet, 630 F. Supp. 2d 1368, 1379 (S.D. Fla. 2009) (“allowing the
plaintiff to circumvent applicable state procedures and collaterally attack her convictions in
federal court is the precise situation that Heck seeks to preclude” when plaintiff entered into a
plea agreement with knowledge of substantially all of the allegations that now form the basis of a
§ 1983 action for damages); Cooper v. Georgia, No. CV413-091, 2013 WL 2253214, at *2 (S.D.
Ga. May 22, 2013) report and recommendation adopted by No. CV413-091, 2013 WL 2660046
(S.D. Ga. June 11, 2013); Brown v. Renfroe, No. CV210-003, 2011 WL 902197, at *2 (S.D. Ga.
Jan. 25, 2011), report and recommendation adopted by No. CV210-003, 2011 WL 892359
(S.D. Ga. Mar. 9, 2011), aff’d sub nom., Brown v. Coleman, 439 F. App’x 794 (11th Cir. 2011).
In this case, Fredrick has not shown that his convictions or sentences have been favorably
terminated. Quite the contrary, Fredrick’s chief complaint is that the state authorities have not
reversed his convictions and sentences, and he directly asks this Court to provide him relief from
the “irreparable injury” resulting from his convictions. (Doc. 1.) Accordingly, Fredrick’s claims
are unquestionably precluded by the Heck decision.
Additional grounds support dismissal of Fredrick’s claims. Pursuant to the Rooker–
Feldman doctrine, the Court is without jurisdiction over Fredrick's claims which essentially seek
review of a state-court criminal conviction against him. “The Rooker–Feldman doctrine derives
from Rooker v. Fidelity Trust Company, 263 U.S. 413 (1923), and District of Columbia Court of

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Appeals v. Feldman, 460 U.S. 462 (1983), and provides that, as a general matter, federal district
courts lack jurisdiction to review a final state court decision.” McCorvey v. Weaver, No. 1510470, 2015 WL 5751756, at *1 (11th Cir. Oct. 2, 2015). Nor, under the Rooker–Feldman
doctrine may a federal court “decide federal issues that are raised in state proceedings and
‘inextricably intertwined’ with the state court’s judgment.” See Datz v. Kilgore, 51 F.3d 252,
253 (11th Cir. 1995) (quoting Staley v. Ledbetter, 837 F.2d 1016, 1018 (11th Cir. 1988)).
“Rooker–Feldman applies because, among the federal courts, Congress authorized only the
Supreme Court to reverse or modify a state court decision.” Helton v. Ramsay, 566 F. App’x
876, 877 (11th Cir. 2014) (citing Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280,
284 (2005)). Because Fredrick, through this action, essentially asks this Court to invalidate his
convictions by the Glynn County Superior Court and State Court, this Court lacks jurisdiction
over his claims.
For these additional reasons, the Court should DISMISS Fredrick’s claims in their
entirety.
III.

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

has, of course, not yet filed a notice of appeal, it would be appropriate to address these issues in
the Court’s order of dismissal. Fed. R. App. P. 24(a)(3) (trial court may certify that appeal is not
take 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

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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.
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 Fredrick’s action, there are no non-frivolous issues to
raise on appeal, and an appeal would not be taken in good faith. Thus, in forma pauperis status
on appeal should be DENIED.
CONCLUSION

For the numerous reasons set forth above, I RECOMMEND that this action be
DISMISSED and that Fredrick be DENIED leave to appeal in forma pauperis. The Court
DENIES Fredrick’s Motion to Proceed in Forma Pauperis before this Court.
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.
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
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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 Fredrick.
SO ORDERED and REPORTED and RECOMMENDED, this 3rd day of January,
2017.

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

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