KING v. STATE OF GEORGIA et al

Filing 10

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Plaintiff's Complaint based on his failure to state a claim, DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal, and DENY Plaint iff in forma pauperis status on appeal. The Court DIRECTS the Clerk of Court to terminate "State of Georgia" as a named Defendants, as Plaintiff did not name this entity in his Amended Complaint. In addition, the Court DIRECTS the Clerk t o amend "Robert Lane" to "Roger Lane" upon the record and docket of this case. 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 6/4/2018). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 5/21/2018. (csr)

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

MICHAEL JEROME KING,
Plaintiff,

CIVIL ACTION NO.: 2:18-cv-39

v.
HADLEY H. MANN; ROGER LANE; and
JONATHAN LOCKWOOD, 1
Defendants.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, who is currently housed at Augusta State Medical Prison in Grovetown,
Georgia, filed a Complaint, as amended, pursuant to 42 U.S.C. § 1983 contesting certain events
which allegedly occurred in Wayne County, Georgia. (Doc. 6.) For the reasons set forth below,
I RECOMMEND the Court DISMISS Plaintiff’s Complaint based on his failure to state a
claim, DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of
dismissal, and DENY Plaintiff in forma pauperis status on appeal. 2

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The Court DIRECTS the Clerk of Court to terminate “State of Georgia” as a named Defendant, as
Plaintiff did not name this entity in his Amended Complaint. In addition, the Court DIRECTS the Clerk
to amend “Robert Lane” to “Roger Lane” upon the record and docket of this case.

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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
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.

BACKGROUND
In his Complaint, Plaintiff asserts Defendants Mann and Lockwood acted fraudulently
“under the façade” of Georgia’s law and violated Plaintiff’s right to due process. (Doc. 6, p. 5.)
Plaintiff contends all Defendants’ actions were “kinds of artifice to deceive” “contrary to legal
and equitable duties”, and Defendants’ action caused injury to Plaintiff. (Id.)
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 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
§ 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 report and recommendation
constituted adequate notice and petitioner’s opportunity to file objections provided a reasonable
opportunity to respond). Additionally, Plaintiff has another opportunity to amend his Complaint to
correct the deficiencies noted in this Report and Recommendation. See Fed. R. Civ. P. 15. Should
Plaintiff seek to amend his Complaint, he must file any desired amendment within fourteen (14) days
from the date of this Report and Recommendation.
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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
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

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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.

Judicial Immunity
Judicial immunity bars Plaintiff’s claims against Defendant Lane. 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 complains about the actions of Defendant Lane in his capacity as a judicial
official in a case that was pending before him in which Plaintiff was a named party.
Nevertheless, Plaintiff fails to make any claim whatsoever that Defendant Lane acted in the clear
absence of jurisdiction. In fact, Plaintiff fails to make any articulable claims against Defendant

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Lane.

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

Defendant Lane based on judicial immunity principles.
II.

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 Defendant Mann pertain to her actions as an advocate 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 should DISMISS Plaintiff’s claims against
Defendant Mann under the doctrine of prosecutorial immunity.
III.

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 County, 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.

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The state-actor requirement traditionally precludes suit against a private party under
Section 1983 because a 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 County 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 County, 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. Because Defendant Lockwood
acted as Plaintiff’s defense attorney and not as a public actor, Plaintiff cannot state a claim
against him under Section 1983. Consequently, the Court should DISMISS Plaintiff’s claims
against Defendant Lockwood.

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IV.

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. 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). 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
Based on the foregoing, I RECOMMEND the Court DISMISS Plaintiff’s Complaint for
failure to state a claim, 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.
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A certificate of appealability is not required in this Section 1983 action.
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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
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 21st day of May, 2018.

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

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