Scott v. State of Georgia Appling County Superior Court

Filing 6

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS with prejudice Plaintiff's claims against Defendant re 1 Complaint, DIRECT the Clerk to enter the appropriate judgment of dismissal and CLOSE this case, and DENY Plaint iff 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 5/23/2018). ORDER directing service of the Report and Recommendation of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 5/9/2018. (ca)

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

STEPHEN ANTWAUN SCOTT,
Plaintiff,

CIVIL ACTION NO.: 2:18-cv-31

v.
STATE OF GEORGIA APPLING COUNTY
SUPERIOR COURT,
Defendant.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, currently incarcerated at Appling County Detention Center in Baxley, Georgia,
filed a cause of action pursuant to 42 U.S.C. § 1983, contesting current criminal proceedings
against him. (Doc. 1.) Plaintiff also filed a Motion for Leave to Proceed in Forma Pauperis.
(Doc. 4.) For the reasons that follow, the Court DENIES Plaintiff’s Motion for Leave to
Proceed in Forma Pauperis. Furthermore, I RECOMMEND that the Court DISMISS with
prejudice Plaintiff’s claims against Defendant, DIRECT the Clerk of Court to enter the
appropriate judgment of dismissal and to CLOSE this case, and DENY Plaintiff leave to appeal
in forma pauperis. 1

1

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
(“R&R”) 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 R&R served as notice that claims would be sua
sponte dismissed). This R&R constitutes fair notice to Plaintiff that his suit is barred and due to be
dismissed. As indicated below, Plaintiff will have the opportunity to present his objections to this
finding, and the District Court will review de novo properly submitted objections. See 28 U.S.C. §

PLAINTIFF’S ALLEGATIONS 2
Plaintiff asserts that on January 14, 2018, at 10:36 p.m., Defendant violated his due
process rights by prohibiting him from challenging the personal jurisdiction of the State of
Georgia. (Doc. 1, p. 5.) Plaintiff argues Defendant failed to “protect” his right to challenge
personal jurisdiction. (Id.) As relief, Plaintiff ostensibly seeks an injunction but is unclear as to
what that injunction should remedy. (Id. at pp. 1, 5.)
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).
636(b)(1); Fed. R. Civ. P. 72; see also Glover v. Williams, No. 1:12-CV-3562-TWT-JFK, 2012 WL
5930633, at *1 (N.D. Ga. Oct. 18, 2012) (explaining that magistrate judge’s R&R constituted adequate
notice and petitioner’s opportunity to file objections provided a reasonable opportunity to respond).
Additionally, this R&R provides Plaintiff the opportunity to amend his Complaint to correct the
deficiencies noted herein. See Fed. R. Civ. P. 15. Should Plaintiff seek to amend his Complaint, he must
file the amendment within fourteen (14) days from the date of this R&R.
2

The below recited facts are taken from Plaintiff’s Complaint, (doc. 1), and are accepted as true, as they
must be at this stage.

2

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
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
3

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 under Eleventh Amendment Immunity
Plaintiff seeks injunctive relief against Defendant Superior Court of Appling County,

Georgia. 3 As an instrumentality of the State of Georgia, a suit against the Appling County
Superior Court would be the same as a suit against the State of Georgia.

“The Eleventh

Amendment insulates a state from suit brought by individuals in federal court unless the state
either consents to suit or waives its Eleventh Amendment immunity.” Stevens v. Gay, 864 F.2d
113, 114 (11th Cir. 1989) (footnote omitted) (citing Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89, 98–100 (1984)). A lawsuit against a state agency or employee in its official
capacity is no different from a suit against a state itself; such a defendant is immune. Will v.
Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) (holding that the state and its “arms” are not
“persons” amenable to suit under Section 1983).
In enacting Section 1983, Congress did not intend to abrogate “well-established
immunities or defenses” under the common law or the Eleventh Amendment. Id. at 67. Arms or
agencies of the state, such as the Superior Courts and the Department of Corrections, are
therefore immune from suit. See Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per curiam)

3

Plaintiff names the Defendant as the “State of Georgia” with the title “Appling County Superior Court.”
(Doc. 1, p. 2.) To the extent that Plaintiff seeks to sue the State of Georgia directly, those claims would
due to be dismissed for the same reason that any claims against the Appling County Superior Court must
be dismissed.
4

(“There can be no doubt, however, that suit against the State and its Board of Corrections is
barred by the Eleventh Amendment, unless [Georgia] has consented to the filing of such a
suit.”); Edelman v. Jordan, 415 U.S. 651, 663 (1974); Pugh v. Balish, 564 F. App’x 1010, 1013
(11th Cir. 2014) (“In addition, the Eleventh Amendment bars [plaintiff’s] claims against the
[superior court judge], since [plaintiff] is suing a state official, in federal court, for damages
resulting from actions taken by the judge in his official capacity.”); Stevens, 864 F.2d at 115
(Georgia Department of Corrections is barred from suit by Eleventh Amendment).
Because the State of Georgia would be the real party in interest in a suit against the
Appling County Superior Court, the Eleventh Amendment immunizes Defendant from suit even
though Plaintiff only seeks injunctive relief. Additionally, the exception under Ex parte Young
is inapplicable here because Plaintiff is suing an entity of the state itself rather than a state officer
in his or her official capacity. 4 Thus, the Court should DISMISS Plaintiff’s due process claim
against Defendant under Eleventh Amendment sovereign immunity. 5

4

In Ex parte Young, the Supreme Court held that federal courts are not barred Eleventh Amendment
sovereign immunity enjoining state officers from acting unconstitutionally or contrary to other federal
law. 209 U.S. 123, 148–50 (1908). While the Ex parte Young exception allows some suits against state
officials, it “has no application in suits against the States and their agencies, which are barred regardless
of the relief sought.” P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993).
5

For these same reasons, to the extent Plaintiff seeks damages in his action against Defendant, that claim
is also bared by the Eleventh Amendment. Moreover, even if Plaintiff’s Complaint was not barred by the
Eleventh Amendment, Plaintiff fails to state a claim upon which relief can be granted. In order to state a
claim for relief under Section 1983, Plaintiff must satisfy two elements. First, he 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 County, 50 F.3d 1579, 1582 (11th Cir. 1995). Second, Plaintiff
must allege that the act or omission was committed by “a person acting under color of state law.” Id.
Plaintiff has only levied conclusory allegations, and he has failed to sufficiently allege how the Superior
Court or the State of Georgia has deprived him of a right, privilege, or immunity secured by the
Constitution or the laws of the United States. Furthermore, while local governments qualify as “persons”
under Section 1983, the State of Georgia and the Superior Court of Appling County do not.
GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1254 (11th Cir. 2012) (“The State of Georgia,
however, is not a ‘person’ subject to suit under § 1983.”) (citing Will, 491 U.S. at 71); Harris v. Superior
Court of Decatur Cty., No. 1:14-CV-46, 2014 WL 1216212 (M.D. Ga. Mar. 24, 2014) (“Plaintiff’s only
named Defendant, the Superior Court of Decatur County, is not a ‘person’ subject to suit under section
1983. It is neither a natural person, an artificial person, nor a quasi-artificial person subject to such
5

II.

Leave to Appeal in Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. 6

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. 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
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 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.

suit.”); Salim v. Georgia, No. 4:08-CV-142, 2008 WL 5456003, at *3 (M.D. Ga. Dec. 31, 2008)
(“Defendants State of Georgia, Muscogee County Jail, Muscogee County Superior Court and Muscogee
County Sheriff's Department are not ‘persons’ within the meaning of 42 U.S.C. § 1983.”).
6

A certificate of appealability is not required in this Section 1983 action.
6

CONCLUSION
For the reasons set forth above, the Court DENIES Plaintiff’s Motion for Leave to
Proceed in Forma Pauperis. (Doc. 4.) Furthermore, I RECOMMEND the Court DISMISS
with prejudice Plaintiff’s claims against Defendant, 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. However, Plaintiff may amend the Complaint to cure
any deficiencies noted in this Report and Recommendation. See Fed. R. Civ. P. 15. Should
Plaintiff seek to amend the Complaint, Plaintiff must file the amended complaint within fourteen
(14) days from the date of this Report and Recommendation.
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

7

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 9th day of May, 2018.

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

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