McNeil v. Bohannon et al

Filing 8

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Plaintiff's 1 Complaint for failure to state a claim, CLOSE this case, and DENY Plaintiff leave to proceed in forma pauperis on appeal. Any party seeking to object to th is Report and Recommendation is ordered 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 8/26/2016). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 8/12/2016. (csr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION
LARRY DEWAYNE MCNEIL,
Plaintiff,

CIVIL ACTION NO.: 2:16-cv-73

v.
PRESTON BOHANNON; DUANE KIRBY;
BRENT MERRITT; and JUSTIN SANDERS,
Defendants.
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, who is currently incarcerated at Johnson State Prison in Wrightsville, Georgia,
submitted a Complaint pursuant to 42 U.S.C. § 1983 contesting certain events allegedly
occurring in Hazlehurst, Georgia. (Doc. 1.) For the reasons which follow, I RECOMMEND
that the Court DISMISS Plaintiff’s Complaint for failure to state a claim, CLOSE this case, and
DENY Plaintiff leave to proceed in forma pauperis on appeal.
BACKGROUND
Plaintiff filed his Complaint against the above-named Defendants on May 23, 2016. (Id.)
Plaintiff asserts in his Complaint that Defendants violated his Fourteenth Amendment right to
due process when they allegedly revealed his identity as a confidential informant to drug
suppliers. (Id. at p. 10.) Plaintiff also contends that Defendants violated his due process rights
when they broke state law by “conspir[ing] to use[ ] Plaintiff . . . as a confidential informant
without a contract[.]” (Id. at p. 9.)
STANDARD OF REVIEW
Plaintiff seeks to bring this action in forma pauperis under 42 U.S.C. § 1983. 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)).
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

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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, Plaintiff’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.”).
DISCUSSION
I.

Claims of Due Process Violations
Plaintiff contends that Defendants violated his due process rights when they allegedly

revealed his identity as a confidential drug informant. “The Due Process Clause protects against
deprivations of ‘life, liberty, or property without due process of law.’” Kirby v. Siegelman, 195
F.3d 1285, 1290 (11th Cir. 1999) (quoting U.S. CONST. AMEND. XIV). However, Plaintiff makes
no allegations that his life, liberty, or property have been deprived by Defendants’ actions. He
simply states, in a conclusory fashion, that Defendants “caused Plaintiff McNeil pain, suffering,
injury, and emotional distress.” (Doc. 1, p. 9.) Plaintiff provides no other facts supporting
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injury, the threat of injury, or any other deprivation based on Defendants allegedly revealing his
identity to drug suppliers. However, even if there were threats, “[g]enerally a person does not
have a constitutional right under the Fourteenth Amendment to be protected from the criminal
acts of third parties.” Mitchell v. Duval Cty. Sch. Bd., 107 F.3d 837, 838 (11th Cir. 1997) (citing
DeShaney v. Winnebago Cty. Dep’t. of Soc. Servs., 489 U.S. 189, 195 (1989)) (“[N]othing in the
language of the Due Process Clause itself requires the State to protect the life, liberty, and
property of its citizens against invasion by private actors[.]”).
Although some courts have read in a duty to protect predicated on a “special relationship”
or “state created danger” theory, the Eleventh Circuit Court of Appeals has held that these
doctrines are no longer valid. See Waddell v. Hendry Cty. Sheriff’s Off., 329 F.3d 1300, 1305
(11th Cir. 2003); White v. Lemacks, 183 F.3d 1253, 1257–59 (11th Cir. 1999). Instead, conduct
by a government actor rises to the “level of a substantive due process violation only if the act can
be characterized as arbitrary or conscience shocking in a constitutional sense.” Waddell, 329
F.3d at 1305 (citing Collins v. City of Harker Heights, 503 U.S. 115 (1992)). In defining what
type of egregious behavior shocks the conscience, the Eleventh Circuit has held that “at the very
least, [it] require[s] a showing of deliberate indifference to an extremely great risk of serious
injury to someone in [Plaintiff’s] position.” Vaughn v. City of Athens, 176 F. App’x 974, 977
(11th Cir. 2006) (emphasis in original) (citation omitted); see also Davis v. Carter, 555 F.3d 979,
983 n.3 (11th Cir. 2009) (“[T]he court did not rule out that ‘the correct legal threshold for
substantive due process liability . . . is actually far higher.’” (citation omitted)).
In the current case, even accepting Plaintiff’s allegations as true, Defendants’ alleged
conduct does not rise to the level of behavior that “shocks the conscience.” Although Plaintiff
alleges that Defendants revealed his identity to a known drug supplier, Plaintiff does not assert

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any facts which could amount to a plausible claim that he suffered an “extremely great risk of
serious injury.” Plaintiff makes a conclusory claim that he will “continue to be irreparably
injured by the conduct of the Defendants [sic] action,” but provides no further details as to what
that injury is. (Doc. 1, p. 11.) While Plaintiff is a pro se litigant and as such, the Court will
liberally construe his Complaint, Plaintiff must still assert “more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555.
Plaintiff also alleges that Defendants violated his due process rights when they “failed to
meet the state requirements” by employing him without a contract and revealing his identity.
(Doc. 1, pp. 9–10.) However, even conduct that would “amount to an intentional tort under state
law” is not considered a due process violation unless it also “shocks the conscience.” Waddell,
329 F.3d at 1305 (citing Dacosta v. Nwachukwa, 304 F.3d 1045, 1048 (11th Cir. 2002)).
Furthermore, a state law violation itself is not enough to support a Section 1983 claim. See
Knight v. Jacobson, 300 F.3d 1272, 1276 (11th Cir. 2002) (“While the violation of state law may
(or may not) give rise to a state tort claim, it is not enough by itself to support a claim under
section 1983”). Accordingly, this Court should DISMISS Plaintiff’s due process claims.
II.

State Law Claims
Plaintiff attempts to bring various state law claims via his Complaint, but the Court

should decline to exercise jurisdiction over those claims. “[I]n any civil action of which the
district courts have original jurisdiction,” district courts also have supplemental jurisdiction over
“all other claims that are so related to claims in the action within such original jurisdiction that
they form part of the same case or controversy[.]” 28 U.S.C. § 1367(a). “The dismissal of
[Plaintiff’s] underlying federal question claim does not deprive the court of supplemental
jurisdiction over the remaining state law claims.” Baggett v. First Nat’l Bank of Gainesville, 117

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F.3d 1342, 1352 (11th Cir. 1997). Instead, pursuant to 28 U.S.C. § 1367(c), “the Court has the
discretion to decline to exercise supplemental jurisdiction over non-diverse state law claims,
where the court has dismissed all claims over which it had original jurisdiction, but the court is
not required to dismiss the case.” Id. “Where § 1367(c) applies, considerations of judicial
economy, convenience, fairness, and comity may influence the court’s discretion to exercise
supplemental jurisdiction.” Id. at 1353.
While the Court has the discretion to retain jurisdiction over state law claims after
dismissing federal claims, the law cautions against doing so. Mergens v. Dreyfoos, 166 F.3d
1114, 1119 (11th Cir. 1999) (in its discretion the district court may dismiss State law claims after
dismissing federal claims; “[m]ore specifically . . . if the federal claims are dismissed prior to
trial, [United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966)], strongly encourages or even
requires dismissal of state claims”) (quotes and citation omitted); accord Granite State Outdoor
Advertising, Inc. v. Cobb Cty., Ga., 193 F. App’x 900, 907 (11th Cir. 2006). When exercising
its discretion, the Court takes into consideration that “state courts, not federal courts, should be
the final arbiters of state law.” Ingram v. Sch. Bd. of Miami-Dade Cty., 167 F. App’x 107, 108
(11th Cir. 2006); see also Hicks v. Moore, 422 F.3d 1246, 1255 n.8 (11th Cir. 2005) (“Certainly,
if the federal claims are dismissed before trial, . . . the state claims should be dismissed as well.”)
(internal quotation and citation omitted); Raney v. Allstate Ins. Co., 370 F.3d 1086, 1088–89
(11th Cir. 2004) (“We have encouraged district courts to dismiss any remaining state claims
when, as here, the federal claims have been dismissed prior to trial.”). Consequently, the Court
should decline to retain jurisdiction over Plaintiff’s state law claims and DISMISS those claims
WITHOUT PREJUDICE.

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III.

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 would be appropriate to address that issue in the
Court’s order of dismissal. See 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, either before or
after the notice of appeal is filed, 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. 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, I RECOMMEND the Court DISMISS this action and
DIRECT the Clerk of Court to enter the appropriate judgment of dismissal and CLOSE this

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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 pleading 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
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 Plaintiff.
SO ORDERED and REPORTED and RECOMMENDED, this 12th day of August,
2016.

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