Talley v. Glynn County Detention Center et al

Filing 4

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS in part Plaintiff's 1 Complaint for failure to state a claims and DISMISS without prejudice his conditions of confinement claims. It is further RECOMMENDED the Court DIR ECT the Clerk to enter the appropriate judgment of dismissal and CLOSE this case and DENY Plaintiff leave to appeal in forma pauperis. 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 10/27/2017). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 10/13/2017. (ca)

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

MICHAEL SHANNON TALLEY,
Plaintiff,

CIVIL ACTION NO.: 2:17-cv-46

v.
GLYNN COUNTY DETENTION CENTER;
et al.,
Defendants.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, who is currently housed at the Georgia Diagnostic & Classification State Prison
in Jackson, Georgia, filed a Complaint pursuant to 42 U.S.C. § 1983 contesting certain events
which allegedly occurred in Brunswick, Georgia. (Doc. 1.) Plaintiff also filed a Motion for
Leave to Proceed in Forma Pauperis. (Doc. 2.) For the reasons set forth below, the Court
DENIES Plaintiff’s Motion. For these same reasons, I RECOMMEND the Court DISMISS
Plaintiff’s Complaint based on his failure to state a claim, DIRECT the Clerk of Court to enter
the appropriate judgment of dismissal and CLOSE this case, and DENY Plaintiff in forma
pauperis status on appeal.
BACKGROUND
In his Complaint, Plaintiff maintains Defendant Mark Gordon with the Probation
Division of the Georgia Department of Corrections submitted a petition for modification or
revocation of his parole accusing Plaintiff of committing felonies. Plaintiff states Defendants
Roger Lane and Anthony Harrison, both of whom are Glynn County Superior Court judges,
signed the petition based on felony charges Plaintiff claims he did not commit. (Doc. 1-1, p.1.)

In addition, Plaintiff asserts an unknown Assistant District Attorney knowingly used perjured
testimony at some unspecified time, presumably from a Brunswick Police Department officer.
(Id. at pp. 2, 3.) Plaintiff alleges unknown officers with the Glynn County Police Department
arrested him without a warrant or probable cause.

Plaintiff contends Sheriff Jump and

Undersheriff Corbett illegally detained him at the Glynn County Detention Center.
Further, Plaintiff asserts Defendants Gunderson and Kidder failed to give him several
medications, including medications he needs for his mental health condition. Additionally,
Plaintiff avers Defendant Hall told him he would not receive “benzo’s [sic]”, even though he was
warned he should never stop taking these medications because he could have seizures or other
medical problems. (Id. at pp. 3–4.) Plaintiff also asserts Defendants Lowe and Heath allowed
these violations to occur because these two Defendants did nothing to help Plaintiff after he filed
grievances. (Id. at p. 2.) Plaintiff states “medical staff” at Glynn County Detention Center and
Defendant Frazier placed him in isolation, in violation of policy. (Id. at p. 4.) Plaintiff further
states Defendant Brooks began floating his medications because she said Plaintiff had been
caught hoarding them.
As relief, Plaintiff seeks to: have all charges against him dismissed; have his record
expunged; be released on his own recognizance; be compensated for the time he was falsely
imprisoned and for being denied medications; receive money for the care of his daughter; change
the law; have the parties who broke the law punished; and have probation abolished. (Id. at p. 5.)
STANDARD OF REVIEW
Plaintiff 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, shows an inability to pay the

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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, 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).
The Court looks to the instructions for pleading contained in the Federal Rules of Civil
Procedure when reviewing a Complaint on an application to proceed in forma pauperis. 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
plaintiff must assert “more than labels and conclusions, and a formulaic recitation of the

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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[.]”) (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 Against Sheriff Jump and Undersheriff Corbett
In order to state a claim for relief under Section 1983, a plaintiff must satisfy two

elements. First, a plaintiff must allege that an act or omission deprived him “of some right,
privilege, or immunity secured by the Constitution or laws of the United States.” Hale v.
Tallapoosa Cty., 50 F.3d 1579, 1582 (11th Cir. 1995). Second, a plaintiff must allege that the act
or omission was committed by “a person acting under color of state law.” Id. Further, Section
1983 liability must be based on something more than a defendant’s supervisory position or a

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theory of respondeat superior. 1 Bryant v. Jones, 575 F.3d 1281, 1299 (11th Cir. 2009); Braddy
v. Fla. Dep’t of Labor & Emp’t Sec., 133 F.3d 797, 801 (11th Cir. 1998). A supervisor may be
liable only through personal participation in the alleged constitutional violation or when there is
a causal connection between the supervisor’s conduct and the alleged violations. Id. at 802. “To
state a claim against a supervisory defendant, the plaintiff must allege (1) the supervisor’s
personal involvement in the violation of his constitutional rights, (2) the existence of a custom or
policy that resulted in deliberate indifference to the plaintiff’s constitutional rights, (3) facts
supporting an inference that the supervisor directed the unlawful action or knowingly failed to
prevent it, or (4) a history of widespread abuse that put the supervisor on notice of an alleged
deprivation that he then failed to correct.” Barr v. Gee, 437 F. App’x 865, 875 (11th Cir. 2011).
Plaintiff seeks to hold Defendants Jump and Corbett liable solely based on their
supervisory positions as Sheriff and Undersheriff of Glynn County, Georgia. However, Plaintiff
fails to present any facts indicating there is a causal connection between any actions of
Defendants Jump and Corbett and the alleged violation of Plaintiff’s constitutional rights. He
does not allege that Defendants Jump and Corbett were personally involved in the conditions that
he complains of or that the conditions resulted from some custom or policy Defendants Jump or
Corbett promulgated or maintained. Plaintiff also fails to plausibly allege that Defendants Jump
and Corbett directed the allegedly unlawful conditions or ignored a widespread history of abuse
in this regard. In fact, Plaintiff fails to make even conclusory allegations that Defendants Jump
and Corbett were aware of or were personally responsible for the alleged violations of Plaintiff’s
constitutional rights.

Accordingly, the Court should DISMISS Plaintiff’s claims against

Defendants Jump and Corbett.
1

The principle that respondeat superior is not a cognizable theory of liability under Section 1983 holds
true regardless of whether the entity sued is a state, municipality, or private corporation. Harvey v.
Harvey, 949 F.2d 1127, 1129–30 (11th Cir. 1992).
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II.

Judicial Immunity
Judicial immunity bars Plaintiff’s claims against Defendants Lane and Harrison.

Congress did not abrogate the doctrine of judicial immunity when it enacted Section 1983.
Judicial immunity is an absolute immunity, and it applies even when a judge acts maliciously.
Bolin v. Story, 225 F.3d 1234, 1239 (11th Cir. 2000) (“Judges are entitled to absolute judicial
immunity from damages for those acts taken while they are acting in their judicial capacity
unless they acted in the clear absence of all jurisdiction.”); Stump v. Sparkman, 435 U.S. 349,
356 (1978) (holding judicial immunity doctrine applies in Section 1983 actions). Absolute
immunity not only protects against liability but also against a case going to trial at all. Harris v.
Deveaux, 780 F.2d 911, 914 (11th Cir. 1986) (citing Mitchell v. Forsyth, 472 U.S. 511, 526
(1985)). To determine whether a judge is entitled to absolute immunity from money damages
under Section 1983, a two-part test was established in Stump: 1) whether the judge dealt with the
plaintiff in a judicial capacity; and 2) whether the judge acted in the “clear absence of all
jurisdiction.” Id. (quoting Stump, 435 U.S. at 357). The second prong of this test is “only
satisfied if a judge completely lacks subject matter jurisdiction.” Id. at 916.
Plaintiff clearly complains about the actions or omissions of Defendants Lane and
Harrison in their capacities as judicial officials in cases that were pending before them in which
Plaintiff was a named party.

Nevertheless, he fails to make a plausible claim that these

Defendants acted in the clear absence of jurisdiction. Consequently, the Court should DISMISS
Plaintiff’s Section 1983 claims against Defendants Lane and Harrison based on judicial
immunity principles.

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III.

Claims Against Glynn County Detention Center
In order to state a claim for relief under Section 1983, a plaintiff must satisfy two

elements. First, a plaintiff must allege that an act or omission deprived him “of some right,
privilege, or immunity secured by the Constitution or laws of the United States.” Hale v.
Tallapoosa Cty., 50 F.3d 1579, 1582 (11th Cir. 1995). Second, a plaintiff must allege that the act
or omission was committed by “a person acting under color of state law.” Id. While local
governments qualify as “persons” under Section 1983, local police departments and penal
institutions are generally not considered legal entities subject to suit. Dean v. Barber, 951 F.2d
1210, 1214 (11th Cir. 1992) (“Sheriff’s departments and police departments are not usually
considered legal entities subject to suit[.]”) (citations omitted); Williams v. Chatham Cty.
Sherriff’s Complex, Case No. 4:07-cv-68, 2007 WL 2345243 (S.D. Ga. Aug. 14, 2007) (“The
county jail, however, has no independent legal identity and therefore is not an entity that is
subject to suit under Section 1983.”); Shelby v. Atlanta, 578 F. Supp. 1368, 1370 (N.D. Ga.
1984) (dismissing the Atlanta Police Department for not being a proper Section 1983 defendant).
Consequently, the Glynn County Detention Center is not a viable Defendant in Plaintiff’s
Section 1983 action. Therefore, the Court should DISMISS Plaintiff’s claims against Defendant
Glynn County Detention Center because it is not a proper party Defendant in a Section 1983
action.
IV.

Denial of Grievances
“An allegation that prison officials denied grievances does not ‘support a finding of

constitutional violations on the part of’ those defendants.” Gresham v. Lewis, No. 6:15-CV-86,
2016 WL 164317, at *3 (S.D. Ga. Jan. 13, 2016) (citing Bennett v. Sec’y, Fla. Dep’t of Corr.,
No. 4:12CV32-MP/CAS, 2012 WL 4760856, at *1 (N.D. Fla. Aug. 27, 2012), report and

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recommendation adopted, No. 4:12-CV-00032-MP-CAS, 2012 WL 4760797 (N.D. Fla. Oct. 2,
2012) (quoting Raske v. Dugger, 819 F. Supp. 1046, 1054 (M.D. Fla. 1993)); see also Ludy v.
Nelson, No. 5:14-CV-73-MTT-CHW, 2014 WL 2003017, at *3 (M.D. Ga. Apr. 18, 2014),
report and recommendation adopted, No. 5:14-CV-73 MTT, 2014 WL 2003096 (M.D. Ga. May
15, 2014) (“However, the mere fact that a prison official denies a grievance is insufficient to
impose liability under § 1983.”) (citing Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir.
2009), and Baker v. Rexroad, 159 F. App’x 61, 62 (11th Cir. 2005)).
Here, Plaintiff alleges Defendants Lowe and Heath denied or failed to provide any
assistance to him after he filed grievances regarding the conditions of his confinement. As stated
above, the denial of grievances is an insufficient basis for liability under Section 1983. Thus, the
Court should DISMISS Plaintiff’s claims against Defendants Lowe and Heath.
V.

Dismissal Pursuant to Heck v. Humphrey and the Rooker-Feldman Doctrine
The allegations contained in Plaintiff’s Complaint center around his criminal proceedings

in Glynn County, Georgia. It appears from the docket of this case that Plaintiff has been
convicted of the charges levied against him; however, Plaintiff makes no indication whether that
conviction has been reversed, expunged, invalidated, called into question by a federal court’s
issuance of a writ of habeas corpus, or otherwise overturned. (Doc. 1.) Consequently, 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 United
States 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

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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
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 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

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damages, Heck’s holding has been extended to claims seeking declaratory or injunctive relief as
well as money damages. 2 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
corpus.”).
“Under this standard, it is not unusual for a § 1983 claim to be dismissed for failure to
satisfy Heck’s favorable termination requirement.” 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-CV-235-ORL-22, 2011 WL 2222170 (M.D. Fla. June 8,
2011) (citing Gray v. Kinsey, No. 3:09–cv–324/LC/MD, 2009 WL 2634205, at *9 (N.D. Fla.
Aug. 25, 2009) (finding plaintiff’s claims barred by Heck’s favorable termination requirement
where plaintiff sought invalidation of his traffic conviction but failed to appeal the conviction in
state court)); 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” because the plaintiff entered
into a plea agreement with knowledge of substantially all of the allegations that now form the
basis of a Section 1983 action for damages); St. Germain v. Isenhower, 98 F. Supp. 2d 1366,
1372 (S.D. Fla. 2000) (holding plaintiff’s convictions for the lesser-included offenses of false
imprisonment and misdemeanor battery did not constitute a favorable termination and thus
2

As relief, Plaintiff seeks to: have all charges against him dismissed; have his record expunged; be
released on his own recognizance; be compensated for the time he was falsely imprisoned and for being
denied medications; receive money for the care of his daughter; change the law; have the parties who
broke the law punished; and have probation abolished. (Doc. 1, p. 5.)

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plaintiff’s § 1983 action was precluded by Heck ); see also 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, Plaintiff has not shown that his underlying conviction or his sentence has
been favorably terminated. Instead, Plaintiff seeks his release from confinement and monetary
compensation. Accordingly, the Heck decision unquestionably precludes Plaintiff’s claims.
Even if Plaintiff is not challenging a conviction, he is at least challenging his post-arrest
confinement. However, Heck is not only limited to claims challenging the validity of criminal
convictions. It also applies to detentions absent convictions. See Cohen v. Clemens, 321 F.
App’x 739, 741 (10th Cir. 2009) (In the immigration context, “Heck bar[red the plaintiff’s]
claims for damages because success on those claims would necessarily imply the invalidity of
[his] detention.”); Edwards v. Balisok, 520 U .S. 641 (1997) (applying Heck to a Section 1983
claim challenging procedures used to deprive a prison inmate of good time credits); Huftile v.
Miccio-Fonseca, 410 F.3d 1136, 1137 (9th Cir. 2005) (applying Heck to a Section 1983 claim
challenging civil commitment under California’s Sexually Violent Predators Act); Hamilton v.
Lyons, 74 F.3d 99, 102–03 (5th Cir. 1996) (applying Heck to a Section 1983 claim challenging
the coercive nature of a pretrial detainee’s confinement prior to giving a statement regarding
pending charges).
Additional grounds support dismissal of Plaintiff’s putative Section 1983 claims.
Pursuant to the Rooker-Feldman doctrine, the Court is without jurisdiction over Plaintiff’s

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claims, which essentially seek review of state-court criminal proceedings decided against him.
“The Rooker-Feldman doctrine derives from Rooker v. Fidelity Trust Company, 263 U.S. 413
(1923), and District of Columbia Court of 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, 620 F. App’x 881, 882 (11th Cir. 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 Plaintiff, through this Section 1983 action, essentially asks this Court to
invalidate the conviction on which he was paroled and the criminal charges against him in Glynn
County, Georgia, this Court lacks jurisdiction over his claims.
For these reasons, the Court should DISMISS Plaintiff’s non-conditions of confinement
claims in their entirety.
VI.

Plaintiff’s Unrelated Claims
In addition to his contentions regarding his criminal proceedings, Plaintiff levies claims

relating to the conditions of his confinement at the Glynn County Detention Center, particularly
allegations concerning his medical needs. (Doc. 1.) However, the allegations Plaintiff sets forth
in his Complaint are not related to each other. A plaintiff may not join claims and various
defendants in one action unless the claims “arise out of the same transaction, occurrence, or
series of transactions or occurrences; and any question of law or fact common to all defendants

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will arise in the action.” Fed. R. Civ. P. 20(a). Accordingly, because Plaintiff’s conditions of
confinement claims are not related to his contentions regarding his criminal proceedings, the
Court should DISMISS without prejudice Plaintiff’s conditions of confinement claims.
VII.

Leave to Appeal in Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. 3

Though

Plaintiff 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 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.
Gross, 984 F.2d 392, 393 (11th Cir. 1993). 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.

3

A certificate of appealability is not required in this Section 1983 action.
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CONCLUSION
The Court DENIES Plaintiff’s Motion for Leave to Proceed in Forma Pauperis.
(Doc. 2.) I RECOMMEND the Court DISMISS in part Plaintiff’s Complaint for failure to
state a claim and DISMISS without prejudice his conditions of confinement claims. I also
RECOMMEND the Court DIRECT the Clerk of Court to enter the appropriate judgment of
dismissal and CLOSE this case and DENY Plaintiff leave to appeal in forma pauperis.
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
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.

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The Court DIRECTS the Clerk of Court to serve a copy of this Report and
Recommendation upon Plaintiff.
SO ORDERED and REPORTED and RECOMMENDED, this 13th day of October,
2017.

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

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