Pyburn v. Dole et al

Filing 6

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Plaintiff's 4 Amended Complaint for failure to state a claim and DIRECT the Clerk to CLOSE this case and enter the appropriate judgment of dismissal. It is further RECO MMENDED that the Court 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

THOMAS LARRY PYBURN,
Plaintiff,

CIVIL ACTION NO.: 2:17-cv-68

v.
DETECTIVE SHERI DOYLE; et al.,
Defendants.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, who is currently housed at Autry State Prison in Pelham, Georgia, filed a
Complaint, as amended, pursuant to 42 U.S.C. § 1983 contesting certain events allegedly
occurring in Brunswick, Georgia. (Docs. 1, 3, 4.) Plaintiff also filed a Motion for Leave to
Proceed in Forma Pauperis. (Doc. 2.) For the reasons which follow, the Court DENIES
Plaintiff’s Motion for Leave to Proceed in Forma Pauperis. (Doc. 2.) For these same reasons, I
RECOMMEND the Court DISMISS Plaintiff’s Complaint, as amended, for failure to state a
claim and DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment
of dismissal. Additionally, I RECOMMEND the Court DENY Plaintiff leave to appeal in
forma pauperis.
BACKGROUND
In his Amended Complaint 1, Plaintiff contends Defendant Sheri Doyle, a detective with
the Brunswick Police Department, arrested him without probable cause on May 8, 2002.

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Plaintiff’s Second Amended Complaint supersedes his original Complaint. Wimberly v. Broome, No.
6:15-CV-23, 2016 WL 3264346, at *1 (S.D. Ga. Mar. 29, 2016), report and recommendation adopted,
No. 6:15-CV-23, 2016 WL 3360521 (S.D. Ga. June 14, 2016) (citing Malowney v. Fed. Collection
Deposit Grp., 193 F.3d 1342, 1345 n.1 (11th Cir. 1999) (“An amended complaint supersedes an original

(Doc. 4, p. 6.) He implies Defendant Barbara Retzer, a forensic investigator with the Georgia
Bureau of Investigation, testified falsely about test results and did not preserve evidence. (Id. at
pp. 2, 17.) Plaintiff also contends Defendants Judge E.M. Wilkes, III, and Judge Stephen
Scarlett; District Attorneys Jackie Johnson and Stephen Kelly; Assistant District Attorneys
Leslie DeVoogt and Keith Higgins; Public Defender J. Jeff Lacy; and the remaining named
Defendants conspired to convict him of incest and to keep Plaintiff in prison at all costs. (Id. at
pp. 14–22.) Plaintiff maintains he was prosecuted maliciously because the evidence at trial
showed he did not commit the crimes for which he was charged. (Id. at pp. 28–29.) Plaintiff
claims he was slandered and that Defendants intentionally inflicted emotional distress upon him.
(Id. at pp. 32–34.) In addition, Plaintiff contends Defendants Wilkes and Scarlett silenced him
by failing to conduct hearings he requested. (Id. at p. 35.) As relief, Plaintiff requests that this
Court order the Glynn County Superior Court to conduct an evidentiary hearing and over
$65,000,000.00 in monetary damages. (Id. at pp. 36–37.)
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
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.”), and Varnes v. Local 91, Glass Bottle Blowers Ass’n, 614 F.2d 1365, 1370 n.6 (11th Cir.
1982) (“As a general rule, an amended complaint supersedes and replaces the original complaint unless
the amendment specifically refers to or adopts the earlier pleading.”)). Plaintiff filed a Second Amended
Complaint, which is nearly identical to his original Amended Complaint.

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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
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

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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.

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. While it appears that Plaintiff has been convicted, there is nothing to
indicate that his conviction has been reversed, expunged, invalidated, called into question by a
federal court’s issuance of a writ of habeas corpus, or otherwise overturned. (Docs. 1, 3, 4.)
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
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.
2

As noted above, Plaintiff seeks a Court order and monetary damages. (Doc. 4, pp. 36–37.)
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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 conviction or his sentence has been favorably
terminated. Accordingly, the Heck decision unquestionably precludes Plaintiff’s claims.
In addition, pursuant to the Rooker-Feldman doctrine, the Court is without jurisdiction
over Plaintiff’s 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 obtained against him in Glynn County,
Georgia, this Court lacks jurisdiction over his claims.

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For these reasons, the Court should DISMISS Plaintiff’s claims in their entirety.
However, additional grounds support the dismissal of Plaintiff’s claims, which the Court also
addresses.
II.

Judicial Immunity
Judicial immunity bars Plaintiff’s claims against Defendants Wilkes and Scarlett.

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 these Defendants’ actions or omissions in their
capacities as judicial officials in cases pending before them in which Plaintiff was a named party.
He fails to make a plausible claim that Defendants Wilkes and Scarlett acted in the clear absence
of jurisdiction.

Consequently, the Court should DISMISS Plaintiff’s Section 1983 claims

against Defendants Wilkes and Scarlett based on judicial immunity principles.

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III.

Prosecutorial Immunity
Likewise, the Supreme Court has repeatedly reiterated that Section 1983 did not abrogate

the doctrine of absolute prosecutorial immunity. See, e.g., Van de Kamp v. Goldstein, 555 U.S.
335, 342 (2009). “Today, absolute prosecutorial immunity extends to ‘acts undertaken by a
prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in
the course of his role as an advocate for the State.’” Favors-Morrell v. United States, No. CV
214-164, 2015 WL 3766853, at *3 (S.D. Ga. June 15, 2015) (quoting Buckley v. Fitzsimmons,
509 U.S. 259, 273 (1993)); see also Rivera v. Leal, 359 F.3d 1350, 1353 (11th Cir. 2004) (“A
prosecutor is entitled to absolute immunity from suit for all actions he takes while performing his
function as an advocate for the government.”).
Plaintiff’s claims against District Attorneys Kelley and Johnson and Assistant District
Attorneys DeVoogt and Higgins pertain to their actions as advocates for the State of Georgia and
concern prosecutorial functions that are intimately associated with the judicial phase of the
prosecution. See Van de Kamp, 555 U.S. at 342 (citing Kalina v. Fletcher, 522 U.S. 118, 127,
130 (1997)). Thus, the Court may also DISMISS Plaintiff’s claims against Defendants Kelley,
Johnson, DeVoogt, and Higgins under the doctrine of prosecutorial immunity.
IV.

Claims Against Public Defender
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. The state-actor
requirement traditionally precludes suit against a private party under Section 1983 because a

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private party may qualify as a state actor for Section 1983 purposes only in “rare circumstances.”
Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992). The Eleventh Circuit Court of Appeals
recognizes a private party as a state actor only when one of three tests is satisfied: “the state
compulsion test, the public function test, or the nexus/joint action test.” Davis v. Self, 547 F.
App’x 927, 933–34 (11th Cir. 2013) (citing Rayburn ex rel. Rayburn v. Hogue, 241 F.3d 1341,
1347 (11th Cir. 2001)).
A defense attorney, whether court-appointed or privately retained, represents only his
client, not the state. Polk Cty. v. Dodson, 454 U.S. 312 (1982). Accordingly, the law is wellestablished that “[a] public defender does not act under color of state law when performing a
lawyer’s traditional functions as counsel to a defendant in a criminal proceeding.” Pearson v.
Myles, 189 F. App’x 865, 866 (11th Cir. 2006) (quoting Polk Cty., 454 U.S. at 325); see also
Dixon v. Eaves, No. CV512-129, 2012 WL 6930306, at *3 (S.D. Ga. Dec. 26, 2012) (ineffective
assistance of counsel allegations against plaintiff’s court-appointed attorney in criminal
proceeding failed to state claim under Section 1983); Cobb v. Reeves, No. CV612-085, 2012 WL
5364302, at *4 (S.D. Ga. Oct. 4, 2012) (same). Thus, a defense attorney does not act “under
color of state law,” a critical element of a Section 1983 claim. Since Defendant Lacy acted as
Plaintiff’s defense attorney and not as a public actor, Plaintiff cannot state a claim against him
under Section 1983. This deficiency provides another ground for dismissal of Plaintiff’s claims
against Defendant Lacy.
V.

Plaintiff’s Conspiracy Claims
A conspiracy to violate another person’s constitutional rights violates Section 1983. “To

establish a prima facie case of [a S]ection 1983 conspiracy, a plaintiff must show, among other
things, that defendants ‘reached an understanding to violate [his] rights.’” Rowe v. City of Fort

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Lauderdale, 279 F.3d 1271, 1283 (11th Cir. 2007) (quoting Strength v. Hubert, 854 F.2d 421,
425 (11th Cir. 1988)). A “plaintiff does not have to produce a ‘smoking gun’ to establish the
‘understanding’ or ‘willful participation’ required to show a conspiracy, . . . but must show some
evidence of agreement between the defendants.”

Id. at 1283–84 (quoting Bendiburg v.

Dempsey, 909 F.2d 463, 469 (11th Cir. 1990)). “[T]he linchpin for conspiracy is agreement.”
Bailey v. Bd. of Cty. Comm’rs of Alachua Cty., 956 F.2d 1112, 1122 (11th Cir. 1992).
“[M]erely string[ing] together” alleged acts of individuals is not sufficient to establish the
existence of a conspiracy. Harvey v. Harvey, 949 F.2d 1127, 1133 (11th Cir. 1992).
Here, Plaintiff’s Complaint is completely lacking in any factual allegations that
Defendants reached an agreement or intended to conspire against him. Instead, Plaintiff merely
states in a conclusory fashion that Defendants conspired against him to convict him. (Doc. 4,
pp. 14–22.) Consequently, the Court should DISMISS Plaintiff’s conspiracy claims against
Defendants.
VI.

Statute of Limitations
Plaintiff’s constitutional claims and state law claims are also barred by the applicable

statute of limitations. Constitutional claims brought pursuant to Section 1983 “are tort actions,
subject to the statute of limitations governing personal injury actions in the state where the
§ 1983 action has been brought.” Powell v. Thomas, 643 F.3d 1300, 1303 (11th Cir. 2011).
Georgia has a two-year statute of limitations for personal injury actions. O.C.G.A. § 9-3-33.
Although state law determines the applicable statute of limitations, “[f]ederal law determines
when the statute of limitations begins to run.” Lovett v. Ray, 327 F.3d 1181, 1182 (11th Cir.
2003). As a general rule, “the statute of limitations does not begin to run until the facts which

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would support a cause of action are apparent or should be apparent to a person with a reasonably
prudent regard for his rights.” Id.
Plaintiff alleges that Defendants violated his constitutional rights, slandered him, and
subjected him to the intentional infliction of emotional distress as a result of events occurring on
May 8, 2002. (Doc. 4.) However, Plaintiff does not allege that he was unaware of the facts
surrounding his claims in May 2002, nor does he allege any facts to suggest he discovered this
information at a later date. Therefore, the statute of limitations began to run on May 8, 2002, the
date Plaintiff claims the events occurred. Because Plaintiff did not file his Amended Complaint
in this case until September 22, 2017, Plaintiff’s Complaint is untimely filed pursuant to the
applicable statute of limitations period. Thus, this is another ground upon which the Court
should DISMISS Plaintiff’s Complaint.
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.
3

A certificate of appealability is not required in this Section 1983 action.
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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.
CONCLUSION
For the foregoing reasons, the Court DENIES Plaintiff’s Motion for Leave to Proceed in
Forma Pauperis. I RECOMMEND the Court DISMISS Plaintiff’s Complaint for failure to
state a claim and DIRECT the Clerk of Court to CLOSE this case and enter the appropriate
judgment of dismissal. Additionally, I RECOMMEND the Court 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

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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 Court DIRECTS the Clerk of
Court to serve a copy of this Report and Recommendation upon the 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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