Smith v. Wilkes et al

Filing 48

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Plaintiff's Complaint without prejudice, DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal and DENY Plaintiff leave to appeal in forma pauperis. Any party seeking to object to this 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 12/2/2019). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge Benjamin W. Cheesbro on 11/18/2019. (csr)

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

CALVIN SMITH,
Plaintiff,

CIVIL ACTION NO.: 2:17-cv-137

v.
JUDGE E.M. WILKES; et al.,
Defendants.

ORDER AND MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, who is currently an inmate at the Glynn County Detention Center in Brunswick,
Georgia, brought this action under 42 U.S.C. § 1983 while incarcerated at the Appling County
Detention Center in Baxley, Georgia, to challenge his conviction, sentence, and certain
conditions of his confinement which occurred during his incarceration at Ware State Prison in
Waycross, Georgia. Doc. 29. For the reasons stated below, I RECOMMEND the Court
DISMISS Plaintiff’s Complaint without prejudice, DIRECT the Clerk of Court to CLOSE this
case and enter the appropriate judgment of dismissal, and DENY Plaintiff leave to appeal in
forma pauperis. 1 I also DENY Plaintiff’s Motions for Leave to Proceed in Forma Pauperis in
this Court. Docs. 2, 28.

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A “district court can only dismiss an action on its own motion as long as the procedure employed
is fair. . . . To employ fair procedure, a district court must generally provide the plaintiff with notice of its
intent to dismiss or an opportunity to respond.” Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1336 (11th Cir.
2011) (citations and internal quotations marks omitted). A magistrate judge’s report and recommendation
provides such notice and opportunity to respond. See Shivers v. Int’l Bhd. of Elec. Workers Local Union
349, 262 F. App’x 121, 125, 127 (11th Cir. 2008) (indicating that a party has notice of a district court’s
intent to sua sponte grant summary judgment where a magistrate judge issues a report recommending the
sua sponte granting of summary judgment); Anderson v. Dunbar Armored, Inc., 678 F. Supp. 2d 1280,
1296 (N.D. Ga. 2009) (noting that report and recommendation served as notice that claims would be sua
sponte dismissed). This Report and Recommendation constitutes fair notice to Plaintiff that his suit is due

BACKGROUND 2
In his Second Amended Complaint, Plaintiff realleges the same conclusory accusations as
in his original Complaint and in his subsequent supplements and amendments. See Docs. 1, 11,
12, 13, 15, 16, 17, 18, 23, 25. On November 15, 2017, Plaintiff filed his initial Complaint (along
with five “Statement of Claim” documents attached) and a motion to proceed in forma pauperis.
Docs. 1, 2. The Court deferred ruling on Plaintiff’s motion for leave to proceed in forma
pauperis and directed Plaintiff to file an amended complaint concerning only claims arising from
related occurrences and specifically identifying each intended Defendant, among other things.
Doc. 10 at 5–6. The Court ordered Plaintiff to “only assert claims that arose from the same
transaction or occurrence or series of related transactions or occurrences,” to “provide only
factual allegations,” and to “omit all legal argument and conclusions.” Id. (emphasis in original).
The Court also cautioned Plaintiff that failure to abide by these instructions could result in
dismissal. Id. at 6.
Plaintiff submitted an Amended Complaint on March 22, 2018 (“First Amended
Complaint”). Doc. 13. Thereafter, Plaintiff filed with the Court four amendments, docs. 11, 12,
23, 25, four supplements, docs. 15, 16, 17, 18, and four letters, docs. 14, 19, 21, 22. On May 3,
2019, the undersigned directed Plaintiff to file a Second Amended Complaint, finding that
Plaintiff’s previous filings and allegations made it “impossible for the Court to determine what

to be dismissed. As indicated below, Plaintiff will have the opportunity to present his objections to this
finding, and the presiding district judge will review de novo properly submitted objections. See 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72; see also Glover v. Williams, No. 1:12-CV-3562, 2012 WL
5930633, at *1 (N.D. Ga. Oct. 18, 2012) (explaining that magistrate judge’s report and recommendation
constituted adequate notice and petitioner’s opportunity to file objections provided a reasonable
opportunity to respond).
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During frivolity review under 28 U.S.C. § 1915A, “[t]he complaint’s factual allegations must be
accepted as true.” Waldman v. Conway, 871 F.3d 1283, 1289 (11th Cir. 2017).

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claims Plaintiff is attempting to assert, which Defendants he intends to sue, and what relief he is
requesting.” Doc. 26 at 1. Plaintiff was again instructed to submit a Second Amended
Complaint, with “no more than 10 pages” attached, providing “only factual allegations” and
omitting all “legal argument or conclusions,” and only asserting “claims that arose from the
same transaction or occurrence or series of related transactions or occurrences.” Id. at 2
(emphasis in original). The Court gave Plaintiff “one final opportunity to cure these defects.”
Id. at 1–2.
Plaintiff submitted his Second Amended Complaint on May 22, 2019. Doc. 29.
However, Plaintiff’s allegations of fact contained therein are no more helpful to the Court than
his previous filings and do not conform to the detailed set of instructions for amending his
complaint. Id. Plaintiff makes a litany of vague and generalized allegations against several
Defendants, including various lawyers, judges, a court system, at least one prison warden, and
the Georgia Department of Corrections, all generally attacking his criminal prosecution in state
court and subsequent incarceration. Plaintiff’s Second Amended Complaint contains only legal
conclusions, devoid of any supporting details and, for the third time, attempts to join unrelated
claims against numerous Defendants. Doc. 29; see also Docs. 10, 26. Since filing his Second
Amended Complaint, Plaintiff has filed several amendments, supplements, letters, and notices,
all in contravention of the Court’s directive to limit attachments to 10 pages. See Docs. 30, 31,
32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47.
DISCUSSION
The Court must now determine how to address Plaintiff’s failure to comply with this
Court’s Orders. For the reasons set forth below, I RECOMMEND the Court DISMISS
Plaintiff’s Complaint without prejudice, DIRECT the Clerk of Court to CLOSE this case and

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enter the appropriate judgment of dismissal, and DENY Plaintiff leave to appeal in forma
pauperis.
I.

Dismissal for Failure to Follow this Court’s Orders
A district court may dismiss claims sua sponte pursuant to either Federal Rule of Civil

Procedure 41(b) or the court’s inherent authority to manage its docket. Link v. Wabash R.R.
Co., 370 U.S. 626 (1962); Coleman v. St. Lucie Cty. Jail, 433 F. App’x 716, 718 (11th Cir.
2011) (citing Betty K Agencies, Ltd. v. M/V MONADA, 432 F.3d 1333, 1337 (11th Cir. 2005)).
“A district court may sua sponte dismiss an action under [Rule] 41(b) for failing to comply with
a court order.” Muhammad v. Muhammad, 561 F. App’x 834, 836 (11th Cir. 2014); see also
Fed. R. Civ. P. 41(b); Forde v. Miami Fed. Dep’t of Corr., 578 F. App’x 877, 879 (11th Cir.
2014) (“The Federal Rules of Civil Procedure allow a district court to dismiss a plaintiff’s action
for failure to comply with the Rules or any court order.”); Coleman, 433 F. App’x at 718; Brown
v. Tallahassee Police Dep’t, 205 F. App’x 802, 802 (11th Cir. 2006) (“The court may dismiss an
action sua sponte under Rule 41(b) for failure to prosecute or failure to obey a court order.”
(citing Fed. R. Civ. P. 41(b))); cf. Local R. 41.1(b) (“[T]he assigned Judge may, after notice to
counsel of record, sua sponte . . . dismiss any action . . . with or without prejudice . . . [based on
w]illful disobedience or neglect of any order of the Court[.]”)
A district court’s “power to dismiss an action is an inherent aspect of its authority to
enforce its orders and ensure prompt disposition of lawsuits.” Brown, 205 F. App’x at 802
(quoting Jones v. Graham, 709 F.2d 1457, 1458 (11th Cir. 1983)). Notably, “the court [is]
entitled to consider . . . the long pattern of conduct which amounted to . . . several failures by
plaintiffs to obey court rules and orders.” Jones v. Graham, 709 F.2d 1457, 1462 (11th Cir.
1983); Brown, 205 F. App’x at 802–03 (finding no error in dismissing without prejudice for

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failure to comply with a court order when plaintiff was warned that failure to comply with the
order would result in dismissal and was “given two opportunities to amend his complaint
according to the court's specific instructions” but “failed to do so”); Muhammad, 561 F. App’x at
836 (11th Cir. 2014) (“Because [plaintiff’s] amended complaint was very similar to his original
complaint, it is clear that he did not obey the court’s order to produce a pleading that complied
with federal standards.”); Hart v. Marlow, No. 15-21257-CIV, 2015 WL 13740729, at *2 (S.D.
Fla. July 31, 2015) (dismissing for failure to follow a court order when the plaintiff “knowingly
ignored the court’s multiple orders instructing him on the filing requirements for his final
amended complaint” and “failed to file a final, proper amended complaint”). Moreover,
“[d]ismissal pursuant to Rule 41(b) ‘upon disregard of an order, especially where the litigant has
been forewarned, generally is not an abuse of discretion.’” Brown, 205 F. App’x at 802 (quoting
Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989)).
While the Court exercises its discretion to dismiss cases with caution, dismissal of this
action without prejudice is warranted. The Court provided Plaintiff with specific instructions for
filing his First and Second Amended Complaints, and Plaintiff continued to fail to comply with
those instructions. See Forde, 578 F. App’x at 879 (finding that pro se litigants are not excused
from complying with court orders directing “the necessary contents and proper structure of [an]
amended complaint” simply “by filing a complaint that states a claim against properly-named
defendants”); Muhammad, 561 F. App’x at 836 (“[S]ince the district court warned [plaintiff] that
his suit would be dismissed if he did not correct the complaint, and provided ample instructions
on how to craft a proper pleading during this case and his previous two, it did not abuse its
discretion in dismissing the case without prejudice.”); Sturdivant v. Hetzel, No. CIV.A. 13-0556,
2014 WL 5323073, at *4 (S.D. Ala. Oct. 17, 2014) (dismissing without prejudice when

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plaintiff’s second and third amended complaints failed to comply with court directives). Despite
the Court’s willingness to excuse Plaintiff’s procedural mistakes and to provide multiple chances
for Plaintiff to submit a proper amended complaint in compliance with the Court’s directives,
Plaintiff still has not done so. Additionally, the Court warned Plaintiff failure to do so may result
in the dismissal of his case. Doc. 10 at 6; Doc. 26 at 2.
The Court has twice given Plaintiff an opportunity to amend his Complaint to cure
fundamental deficiencies, and, in doing so, provided straightforward instructions to Plaintiff on
how to cure those deficiencies. See Docs. 10, 26. Plaintiff has repeatedly failed to follow the
Court’s clear and direct instructions. Plaintiff has demonstrated that he is unwilling to comply
with this Court’s orders. Moreover, Plaintiff’s continued failure to comply with the Court’s
orders has resulted in a convoluted and incomprehensible morass of filings. Therefore,
Plaintiff’s Complaint should be dismissed without prejudice for failure to comply with the
Court’s Orders.
II.

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

has not yet filed a notice of appeal, it is proper to address these issues in the Court’s order of
dismissal. See Fed. R. App. P. 24(a)(3) (trial court may certify that appeal of party proceeding in
forma pauperis is not taken in good faith “before or after the notice of appeal is filed”).
An appeal cannot be taken in forma pauperis if the trial court certifies that the appeal is
not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this
context must be judged by an objective standard. Busch v. County 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

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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). An in forma pauperis action is frivolous and 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, 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 that the Court DISMISS this action
without prejudice and DIRECT the Clerk of Court to CLOSE this case and enter the
appropriate judgment of dismissal. I further RECOMMEND that the Court DENY Plaintiff
leave to proceed in forma pauperis on appeal. I also DENY Plaintiff’s Motions for Leave to
Proceed in Forma Pauperis in this Court. Docs. 2, 28.
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within 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.

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Upon receipt of Objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final
judgment entered by or at the direction of a District Judge. The Court DIRECTS the Clerk of
Court to serve a copy of this Report and Recommendation upon Plaintiff.
SO ORDERED and REPORTED and RECOMMENDED, this 18th day of November,
2019.

____________________________________
BENJAMIN W. CHEESBRO
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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