Sutherland v. Chisolm et al

Filing 25

ORDER granting 16 Motion to Amend/Correct; denying 21 Motion to make a copy of Habeas Corpus. Signed by Magistrate Judge G. R. Smith on 11/29/12. (wwp)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
DAVID SUTHERLAND,

)

)

Plaintiff,

)

)

Case No. CV412-239

V.

CHATHAM COUNTY DISTRICT
ATTORNEY, LARRY CHISOLM
INDIVIDUALLY AND
PROFESSIONALLY, et al.,
Defendants.

ORDER
Proceeding pro Se, David Sutherland brought this 42 U.S.C. § 1983
case against a lengthy list of defendants alleged to have backed the
conviction that he unsuccessfully challenged in Sutherland v. Rawl,
CV411-107, doc. 29 (S.D. Ga. Apr. 13, 2012) (unappealed judgment
dismissing his 28 U.S.C. § 2254 petition).' He misnamed two of those
defendants, however, so the Court GRANTS his motion to amend to
that extent: The name of the defendant, North Fork Southern Rail Road
Corporation (doc. 1 at 2), is changed to Norfolk Southern Corporation,
He paid the Court's filing fee, doe. 1, so the Court did not screen his case under 28
U.S.C. § 1915(e)(2) or § 1915A.
1

and the name of defendant Andrea Pauley is amended to Andrea
Herbster. Doe. 16 at 1; see also doe. 22 at 2. The Clerk shall amend the
docket caption accordingly; all subsequent filings shall conform.
The Court DENIES plaintiff's motion to the Clerk to make a copy
of his habeas corpus case affidavit and exhibits, then file them in this
case. Doe. 21. Sutherland is not indigent (he paid the $350 filing fee)
and may purchase copies of his own filings by paying the Clerk $.50/page,
or download copies through PACER. The Clerk will not perform
secretarial services for him.
Finally, the Court Warns plaintiff about using civil litigation in an
attempt to unravel a criminal conviction or indulge in harassing
"payback litigation." Monetary sanctions await those who violate Fed. R.
Civ. P. 11(b). McDonald v. Emory Healthcare Eye Center, 391 F. App'x
851, 852 (11th Cir. 2010) (district court was within its discretion in
dismissing plaintiffs pro se complaint as a Rule 11 sanction, where
plaintiff filed pleadings for the improper purpose of harassing
defendants, presented claims that were frivolous and had no legal or
factual support, and, consistent with due process, the court gave plaintiff
proper notice and opportunities to respond before imposing incremental

2

sanctions); Bank of the Oarks v. Kingsland Hosp., LLG, CV411-237, doc.

45 at 5, 7 (S.D. Ga. Nov. 26, 2012) (sua sponte Rule 11 sanction against
defense counsel for advancing baseless affirmative defenses). 2
SO ORDERED this day of November, 2012.

6GISTRATE JUDGE
SOUTHEIM DISTRICT OF GEORGIA

2

As another court explains:
"The purpose to Rule 11 is to deter baseless filings in district court and thus
streamline the administration and procedure of federal courts." "Peer v. Lewis
606 F.3d 1306, 1311 (11th Cir. 2010) (citing 2 JAMES WM. MOoRE ET AL.,
MOORE'S FEDERAL PRACTICE § 11.03(3d ed. 2010) (other citations omitted). To
assess a request for Rule 11 sanctions, a court inquires into whether the
party's claims are objectively frivolous, and whether the person who signed the
pleadings should have been aware that the pleadings were frivolous. Id. (citing
Bryne v. Nezhat, 261 F.3d 1075, 1105 (11th Cir.2001) (citing Baker v.
Alderman, 158 F.3d 516, 5, 24 (11th Cir. 1998). The standard is an objective
one, therefore, a court views the pleadings from the standard of whether a
reasonable litigant in similar circumstances could believe his actions were
factually and legally justified. McDonald v. Emory Healthcare Eye Center, 391
Fed. App'x. 851, 852-53 (11th Cir. 2010) (citing Kaplan v. DaimlerChrysler,
A.G., 331 F.3d 1251, 1255 (11th Cir. 2003). If evidentiary support is not
obtained through further investigation or discovery, then the filer has a duty
not to persist with that claim. Peer v. Lewis, 606 F.3d at 1311 (citations
omitted). A court should avoid the use of hindsight and should review the
pleadings at the time they were filed. Id. (citations omitted).

Commerce First Financial, LLC v. Summerlin Bass, LLC, 2011 WL 4902970 at * 3
(M.D. Fla. Sep. 13, 2011).