Jones v. Savannah Chatham Metropolitan Police Dept. et al

Filing 9

REPORT AND RECOMMENDATIONS of the Magistrate Judge state that Jones' case should be dismissed re 1 Complaint filed by Leland Napolean Jones. The Clerk is directed to send this R&R to plaintiff's custodian immediately. Objections to R&R due by 3/8/2012. Signed by Magistrate Judge G. R. Smith on 2/23/2012. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
LELAND NAPOLEAN JONES,
Plaintiff,

SAVANNAH CHATHAM
METROPOLITAN
POLICE DEPT., ET AL.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

Case No. CV412-013

REPORT AND RECOMMENDATION
Indicted in May 2011 on robbery and other charges, see attached
state court docket, Leland Napoleon Jones, as others like him have
recently done, invokes 42 U.S.C. § 1983 in an attempt to jam-up a state
prosecution against him.' See, e.g., Walker v. Officers, CV411-303, doc.

1

Since he has completed his in forma pauperis paperwork, does. 6 & 7, the Court will
now screen his case under 28 U.S.C. § 1915(e)(2)(B)(ii), which allows a district court
to sua sponte dismiss a claim of a plaintiff proceeding in forma pauperis for failure to
state a claim before service of process. See also 28 U.S.C. § 1915A (courts must
identify "cognizable claims" filed by prisoners or other detainees and dismiss claims
which are frivolous, malicious, fail to state a claim for relief, or seek monetary relief
from a defendant immune from such relief, and 42 U.S.C. § 1997e(c)(2) (allowing
dismissal on the same four standards provided by § 1915A as to any prisoner suit
brought "with respect to prison conditions").

13 (S.D. Ga. Feb. 15, 2012) (advising dismissal of a similar "jam-up"
case); Brown v. Eastern Judicial Circuit, CV411-273, doe. 7 (S.D. Ga.
Feb. 9, 2012) (same); 2 see also Kirkland v. St. Lawrence, CV412-007, doe.
5 (S.D. Ga. Feb. 13, 2012) (advising dismissal of 28 U.S.C. § 2241 petition
as premature and obviously aimed at jamming up an ongoing state
prosecution); Youmans v. St. Lawrence, CV412-027, doe. 4 (S.D. Ga. Feb.
13, 2012) (same); Broadus v. St. Lawrence, CV412-035, doe. 5 (S.D. Ga.
Feb. 13, 2012) (same); Jenkins v. St. Lawrence, CV412-031, doe. 6 (S.D.
Ga. Feb. 13, 2012) (same); Walker v. St. Lawrence, doe. 5 CV412-023
(S.D. Ga. Feb. 13, 2012) (same).
The Court applies the Fed. R. Civ. P. 12(b)(6) standards here. Leal v. Ga. Dep't of
Corrs., 254 F.3d 1276, 1278-79 (11th Cir. 2001). Allegations in the complaint are
thus viewed as true and construed in the light most favorable to the plaintiff.
Bumpus v. Watts, 2011 WL 4436591 at * 1 n. 1 (11th Cir. Sep. 26, 2011). But
conclusory allegations fail. Ashcroft v. Iqbal, 556 U.S. -, 129 S. Ct. 1937, 1951

(2009) (discussing a 12(b)(6) dismissal). "[T]he pleading standard [Fed. R. Civ. P.] 8
announces does not require 'detailed factual allegations,' but it demands more than
an unadorned, the-defendant-unlawfully-harmed-me accusation." Id., 129 S. Ct. at
1949 (citations omitted); see also Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)
(pro se pleadings are still construed liberally after Iqbal).
2

Based on the uniform handwriting, the Court suspects that a single individual in
the Chatham County jail is behind many if not all of these cases. All of them have
been legally frivolous. And each has fetched for the filer a 28 U.S.C. § 1915(g) strike.
After three strikes, the filer "will no longer be able to proceed in forma pauperis in
any civil action filed in a federal court unless he is in imminent danger of physical
injury." Thompson v. Gibson, 289 F.3d 1218, 1223 (10th Cir. 2002) (citing § 1915(g)).
Plus for each case filed, the plaintiff is saddled with an obligation to pay the entire
$350 filing fee, to be collected from his jail account, for as long as it takes. 28 U.S.C.
§ 1915(b)(1). That this makes no sense (file a frivolous case, promptly lose, then
incur a strike and a $350 debt) apparently is lost on the progenitor of these lawsuits.
PId

Jones seeks no money damages but instead a declaratory judgment
and an order enjoining that prosecution. Doc. 1 at 1-11. He obviously
trolled the U.S. Code in a lame effort to bolster his case by citing every
last civil rights statute he could find. Id. at 2 (listing things like the
criminal civil rights statutes 3 and 42 U.S.C. § 1981 ) 1985 2 1986 etc.).
For good measure, he named as defendants the local police department4
plus the "District Attorney's Office and Public Defender's Office for
Chatham County City [sic] and Judicial Circuit in the State of Georgia."
Doe. 1 at 3.
Jones wants to enjoin what he deems to be an error-ridden
prosecution. Doe. 1 at 3-5 (listing various statutory and constitutional
8

The criminal civil right statutes simply do not support a private right of action.

See, e.g., Kelly v. Rockefeller, 69 F. App'x 414, 415-16 (10th Cir. 2003) (no private
right of action under H 241 or 245); Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir.
1980) (no private right of action under H 241 and 242); Willing v. Lake Orion Cmty.
Sch. Bd. of Trs., 924 F. Supp. 815, 818 (E.D. Mich. 1996) ( 241 does not give rise to a

private cause of action).
As this Court has explained:
Police departments are not usually considered legal entities subject to suit.
Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir.1992) (dismissing claim against

sheriffs department because department was not subject to suit under
Alabama law); see also McKinnie v. Boseman, 2009 WL 3753989 at * 2 (S.D.Ga.
Nov. 9, 2009); Griffin v. Hillsborough County Sheriffs Dep't, 2009 WL 4547054
at *2 (M.D.Fla. Nov. 30, 2009) (same result under Florida law).
Johnson v. Savannah Chatham Metro. Police Dept, 2010 WL 4790911 at * 2 (S.D. Ga.

Oct. 19 ) 2010) (footnote omitted).
3

errors he alleges have thus far been committed against him in the state
criminal proceedings). But such injunctions are available only where
extraordinary circumstances are shown. Younger v. Harris, 401 U.S. 37,
41 (1971) (an ongoing state criminal proceeding may not be enjoined
"except under special circumstances."); see also Cole v. State of Florida,
2010 WL 2711861 at * 3 n. 4 (N.D. Fla. Jun. 3, 2010).

Jones has not come close to offering any proof of bad faith or
harassment. All he has done is here is cite a conspiracy remedy and then
laundry-list his perceived procedural flaws in the prosecution against
him. See, e.g., doc. 1 at 4 ¶ 6 (he "did not have the opportunity to
confront the said victim" regarding the charges against him); id. at 7-8 ¶
12. He will have every opportunity to hash such perceived flaws out in

the state criminal proceedings -- in the process the state is now affording
to him.
Even if Jones somehow surmounted Younger abstention, his claims
are deficient. His allegation of conspiracy is utterly unsupported. He
"Under Younger, intervention cannot be predicated on mere allegations; rather,
the federal plaintiff must prove bad faith or harassment before intervention is
warranted." Phelps v. Hamilton, 59 F.3d 1058, 1066 (10th Cir. 1995); see Juidice v.
Vail, 430 U.S. 327, 338 (1977) (the bad faith or harassment exception to Younger
"may not be utilized unless it is alleged and proved that [the defendants] are
enforcing the contempt procedures in bad faith or are motivated by a desire to
harass").

4

has not offered any facts showing any sort of agreement between anyone
to deny him his civil rights. See Edwards v. Prime, Inc., 602 F.3d 1276,
1300 (11th Cir. 2010) ("The mere use of the words 'conspiracy' and
'aiding and abetting' without any more explanation of the grounds of the
plaintiffs' entitlement to relief is insufficient.").
Finally, to the extent Jones seeks release from custody, he is in
substance bringing a 28 U.S.C. § 2241 habeas action, not a § 1983 claim.
See Hudson v. Hubbard, 358 F. App'x 116, 119 (11th cir. 2009) (citing
Medberry v. Crosby, 351 F.3d 1049, 1062 (11th cir. 2003)); see also
Wilkinson v. Dotson, 544 U.S. 74 (2005) ("[A] prisoner in state custody
cannot use a § 1983 action to challenge 'the fact or duration of his
confinement.") (quoting Preiser v. Rodriguez, 411 U.S. 475, 489 (1973));
Wolff v. McDonnell, 418 U.S. 539, 553-55 (1974) (delineating distinctions
between using § 1983 to pursue damages, and habeas for claims affecting
confinement). He ultimately seeks to challenge the fact or duration of
his confinement by the state, so he "must seek federal habeas corpus
relief (or appropriate state relief) instead" of a § 1983 judgment.
Wilkinson, 544 U.S. at 78. To do that he must first exhaust his state

5

court remedies.' Hence, his request for release is non-cognizable under §
1983. And, as noted, his 28 U.S.C. § 2241 habeas petition must be
dismissed for lack of exhaustion. Put another way, Jones must return to
the state court where he belongs.
At this stage the court ordinarily considers whether to sua sponte
grant plaintiffs like Jones a second chance to plead their case. Langlois
v. Traveler's Ins. Co., 401 F. App'x. 425, 426-427 (11th cir. 2010).

However, it is apparent that a second chance would be futile here. For
that matter, Jones has now suffered a § 1915(g) strike. Accordingly,
Leland Napoleon Jones' case should be DISMISSED. Hale v. King,
2012 WL 84820 at * 3 (M.D. Fla. Jan. 12, 2012) (same result in similar

Jones does not plead, nor can he credibly claim, that judicial review is not available
to him in the Georgia courts:
6

So long as review is available in the Georgia courts. . . "this Court is precluded
from the consideration of the substance of [Jones' claims] until the issues have
been squarely and fairly presented to the Georgia courts for their
consideration." Fields v. Tankersley, 487 F. Supp. 1389, 1391 (S.D. Ga. 1980).
As Petitioner apparently has not sought relief in state court, he has not
exhausted his state court remedies. See Castille v. Peoples, 489 U.S. 346, 109
S. Ct. 1056, 103 L. Ed. 2d 380 (1989) (holding that a claim is only exhausted if
it was presented to the state courts under remedies available under state law).
Ellis v. Unnamed Defendant, 2010 WL 3842806 at * 1 (N.D. Ga. Sep. 28, 2010); see
also 28 U.S.C. § 2254(b), (c); see also Harvey v. Corbin, 2011 WL 4369828 at * 2 (S.D.

Ga. Aug. 12, 2011) (collecting pre-conviction, state remedy cases).

[1

prosecution jam-up case). The Court also DENIES his motion for
appointment of counsel. Doc. 5.
In the meantime, it is time for Jones to pay his filing fee. His
furnished account information shows that he has had funds in his prison
account during the past six months. Doc. 7 ($21.00 average monthly
balance for the last six months). He therefore owes an initial partial
filing fee of $4.02. See 28 U.S.C. § 1915(b)(1) (requiring an initial fee
assessment "when funds exist," under a specific 20 percent formula).
Plaintiffs custodian (or designee) therefore shall deduct $4.02 from his
account and, when combined with future collections to reach $10.00,
remit it to the Clerk of Court (payable to the "Clerk of Court"). The
custodian shall also set aside 20 percent of all future deposits to the
account, then forward those funds to the Clerk each time the set aside
amount reaches $10.00, until the balance of the Court's $350.00 filing fee
has been paid in full.
Also, the Clerk is DIRECTED to send this R&R to plaintiff's
account custodian (G. Sheppard, doe. 7) immediately, as this payment
"A plaintiff in a civil case has no constitutional right to counsel." Bass v. Perrin,
170 F.3d 1312, 1320 (11th Cir. 1999). This Court appoints counsel only in
exceptional circumstances "such as where the facts and legal issues are so novel or
complex as to require the assistance of a trained practitioner." Dean v. Barber, 951
F.2d 1210, 1216 (11th Cir. 1992). Jones has shown nothing like that here.

7

directive is nondispositive within the meaning of Fed. R. Civ. P. 72(a), so
no Rule 72(b) adoption is required. In the event plaintiff is transferred
to another institution, his present custodian shall forward a copy of this
Order and all financial information concerning payment of the filing fee
and costs in this case to plaintiffs new custodian. The balance due from
the plaintiff shall be collected by the custodian at his next institution in
accordance with the terms of this Order.
SO REPORTED AND RECOMMENDED this 23rd day of
February, 2012.

UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

9

Case etai1s

http://www.chathamcourts.org/CaseDetails.aspx?caseno=CR1 11015

CLJkLM lOU3'ZC.

J iaru jwic1 CArcuk &1 Ccoia
Home

Magistrate Court

February 14, 2012

Probate Court

State Court

Superior Court

Court Forms

Juvenile Court

Court Fees

Location: Case Details

Tnput your search...

Q

Case Details
State

• Case Events

VS.

• Charges

JONES, LELAND NAPOLEON

U Parties
•
Case Information

Defendant Information

Court:

Superior

Case Number:

CR111015

ROBBERY

Case Type:

Name:

JONES, LELAND NAPOLEON

DIN:

X0083192

fThm Conty 5h.iff 50053192

Gender MALE

HONORABLE LOUISA ABBOT

Assistant District Attorney: CHRISTINE SIEGER BARKER
Judge:

Date Filed:
Status:

5/4/2011

ACTIVE -

Next Event:

3/8/2012 MOTION HEARING
(MTH)

Race:

AFRICAN
AMERICAN

Height: 70

.-

weight: 180
Eyes:
Hair:

Attorney Information

Click for lar g e Picture

BROWN
BLACK

Defendant Histo

JUNE FOGLE
540 EAST OGLETHORPE AVE
SAVANNAH, GA
31401
Bondsman Information
N/A

j

Case Events
Time

Date

Action

Judge

Code

LOUISA ABBOT ______

3/8/2012 - 1:30PM

4OTION HEARING (MTH)

1:30PM

MOTION HEARING (MTH)

LOUISA ABBOT

RESCHEDULE EVENT

DOCKET CALL

LOUISA ABBOT

RESCHEDULE EVENT

TRIAL DOCKET CALL

LOUISA ABBOT

ISTATUS CONFERENCE HEARING

LOUISA ABBOT

2/22/2012
12/8/2011

2:00PM

12/8/2011

110/4/201110:00AM

LOUISA ABBOT

10:00AM:STATUS CONFERENCE HEARING

8/23/2011

LOUISA ABBOT

A]ARRAIIMENT/VIDEO

7/11/2011

RESCHEDULE EVENT
EVENT COMPLETE

[Returnto Top]

Severity

Charge Date

FELONY

Counts
16-7-1

2/12/201110:12:07 AM

Fine

Sentencing Details: Description
INMATE TO BE ENTERED INTO 28 DAY
PROGRAM AT CCJ

Duration

NaN

-OTHER

16-8-40

ROBBERY

1

FELONY

16-5 .41

FALSE IMPRISONMENT

1

FELONY

5/4/2011

1

FELONY

5/4/2011

16-8-2

lTHEFT BY TAKING

:2/12/2011 10:12:28 AM

LReCvr.n.. to...TopJ

Proceedings

1 of

2/14/2012 5:04 PM

Case Details

http://www.chathamcourts.org/CaseDetails.aspx?casenoCRl 11015

1:30pM MOTION HEARING (MTH)

3/8/2012

LOUISA
ABBOT

2/22/2012 1:30PM MOTION HEARING (MTH) RESCHEDULE LOUISA
EVENT
ABBOT
:1/26/2012

ORDER

SIGNED ORDER ON DEF PRO SE MTN OF
DELCARATION, DEMAND TO DISMISS CHARGES, MTN
FOR CHANGE OF VENUE - STRICKEN!

1/18/2012

PRO SE LETTER RECEIVED STRICKEN
AND CLERKS RESPONSE

DECLARATION!

1/13/2012

PROSE MOTION

1STRICKEN

DEMAND TO DISMISS CHARGES/

PRO SE MOTION

STRICKEN

MTN FOR CHANGE OF VENUE!

1/13/2012

RESCHEDULE LOUISA
EVENT
iABBOT

12/8/2011 1:30PM TRIAL DOCKET CALL

LOUISA IRescheduled from 12-8-2011 at 1330 DK11100030
ABBOT

2:00PM TRIAL DOCKET CALL

12/8/2011

CASE INQUIRY RPT!

PRO SE LETTER RECEIVED
AND CLERKS RESPONSE

11/30/2011

10/4/2011 10:00AM STATUS CONFERENCE
HEARING

LOUISA
ABBOT

8/23/2011 10:00AM STATUS CONFERENCE
HEARING

RESCHEDULE 'LO
EVENT
iABBOT

8/18!2011

PRO SE LETTER RECEIVED

REQUEST PRELIM TRN/

8/3/2011

PRO SE LETTER RECEIVED
AND CLERKS RESPONSE

REQUEST DISCOVERY!

7/26/2011

TRANSCRIPT RECEIVED

VIDEO ARRAIGNMENT JULY 11,2011

7!11!2011

PLEA OF NOT GUILTY
EVENT
LOUISA
COMPLETE ABBOT

7/11/2011 09:30AM ARRAIGNMENT/VIDEO
6/2412011

STATE'S DISCOVERY
DISCLOSURE

SUPPLEMENTAL UST OF WITNESSES/UST OF TANGIBLE
EVIDENCE!NTC OF RECIDIVIST PROSECUTION!NTC OF
INTENT TO INTRODUCE EVIDENCE IN
AGGRAVA11ON/NTC OF INTENT TO IMPEACH
WITNESSES WITH PRIOR CON VICTIONS/NTC OF
SIMILAR AND CONNECTED TRANSACTIONS/______

6/20/2011

PRO SE LETTER RECEIVED
AND CLERKS RESPONSE

REQUEST STATE'S DISCOVERY!

6/9!2011

PRETRIAL SCHEDULING
ORDER

*
6/2!2011

ENTRY OF APPEARANCE

J. FOGLE!

6/2,'2011

CONSOLIDATED
MOTIONS PACKAGE

CERT OF SERV/

5/18/2011

CERTIFIED MAIL RECEIPT

5/13i'2011

PRO SE LETTER RECEIVED
AND CLERKS RESPONSE

REQUEST ENTIRE CASE FILE!

5/12'2011 :

BENCH WARRANT FILED

EXECUTED 051011!

5/10/2011

BENCH WARRANT ISSUED

5!5!2011

DISMISSAL OF CHARGES

.

REMOVAL FIREARM FROM PUBLIC OFFICIAL'

5/4/2011
4:06:53 PM

SCREENING

.

Initial Case Screening! Scanning

5!4!2011
[Return to Top]

Horns I Mtte...Court I Probate Court I State. Court I Superior..Co,ur.t I )rvunils.Coort I Court Forms I Coiut..Eess
C

2 of

Copyrrght 2012 Chatham County Courts

2/14/2012 5:04 PM

• ' Case 4:12-cv-00013-WTM-GRS Document 7 (Court only) Filed 02/07/12 Page 1 of 7
FU.E0
U.S.. 01STR0T COURT
SA\!ANM' my.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION

211 FEB

7 AM 9•29

CtE1(L
S0J)1ST.0F(t.

LELAND NAPOL1EAN JONES,
Plaintiff,

Case No. CV412-013

V.

SAVANNAH CHATHAM METROPOLITAN
POLICE DEPARTMENT CHIEF WILLIE
C. LOVETT JASON CAEEY, LLOYD F.
SMALL, DENNIS MALOTT, 10,PNNETH
WHITCOMB MARY CHALMERS,.......
KRISTINA dosTA. LARRY CHISOLM,
CHRISTINA S. BABXER, MICHAEL
EDWARDS JUNE E. FOGLE, TODD
MARTIN J'ERON YOUNG, and ANDREW
OSTEEN
Defendants.

PRISONER TRUST FUND ACCOUNT STATEMENT
Under the Prison Litigation Reform Act, a prisoner seeking to bring a civil action
without prepayment of fees must obtain from the appropriate prison official a certified copy
of the prisoner's trust account statement for the six-month period immediately preceding the
filing of the complaint The plaintiff in this case has been instructed by the Court to furnish
this form to the trust officer of each institution where he has been confined for the last six
months.
Please complete this form attach the supporting ledger sheets, and return these
documents to the prisoner for mailing to the
DATE OF FILING COMPLAINT:
AVERAGE MONTHLYDEPOSITS during the six
months prior to filing of the complaint:
AVERAGE MONTHLY BALANCE during the six
months prior to filing of the complaint:

Jprnigrvë1. 2012
By the clerk)

(To be compi
h

I certify that the above information accurately states the deposits and balances in the
plaiptitrs trust account for the period shown ,aiid that the attached ledger sheets are true
copies of the account records mamtained by this institution.

110
tgna ure of

oLI3ut

,14"Aj
orized Officer of Institution

rintorType

Date

$& i-

7