Bryant v. Tyler et al

Filing 6

REPORT AND RECOMMENDATIONS dismissing with prejudice re 1 Complaint filed by Donald Bryant. Objections to R&R due by 6/27/2013. Signed by Magistrate Judge G. R. Smith on 6/13/2013. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
DONALD BRYANT,

)

)

Plaintiff,

)

)

V.

)

Case No. CV413-056

OFFICER WILLIE J. TYLER,
DISTRICT ATTORNEY LARRY
CHISOLM, PUBLIC DEFENDER
JACQULINE CARVANA, and
PUBLIC DEFENDER TODD
MARTIN,
Defendants.

REPORT AND RECOMMENDATION
Donald Bryant, a three-striker under 28 U.S.C. § 1915(g), has
submitted for filing a 42 U.S.C. § 1983 complaint alleging that he was
subjected to an illegal search warrant, falsely arrested, falsely imprisoned,
and had his case mishandled by the public defenders assigned to defend
him. (Doc. 1 at 5-8.) Since plaintiff is barred from proceeding in forma
pauperis, his complaint should be dismissed.
Plaintiffs are generally required to pay $350 to institute a civil
action in a federal district court. 28 U.S.C. § 1914. Indigent prisoners

may avoid prepayment of the filing fee if they proceed IFP under 28 U.S.C.
§ 1915. In order to proceed IFP, however, serial-filers must surmount §
1915(g), which states:
In no event shall a prisoner bring a civil action or appeal a judgment
in a civil action or proceeding under this section if the prisoner has,
on 3 or more prior occasions, while incarcerated or detained in any
facility, brought an action or appeal in a court of the United States
that was dismissed on the grounds that it is frivolous, malicious, or
fails to state a claim upon which relief may be granted, unless the
prisoner is under imminent danger of serious physical injury.
28 U.S.C. § 1915(g). The Eleventh Circuit has held that a prisoner barred
from proceeding IFP due to the "three strikes" provision in § 1915(g) must
pay the complete $350 filing fee when he initiates suit.

Vanderberg v.

Donaldson, 259 F.3d 1321 2 1324 (11th dr. 2001). Therefore, the proper
procedure for a district court faced with a prisoner who seeks IFP status
but is barred by the "three strikes" provision is to dismiss the complaint
without prejudice.

Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir.

2002).
Bryant has at least three strikes under § 1915(g).

See Bryant v.

Morris, No. CV194-3276 (N.D. Ga. Dec. 9, 1994) (dismissed pursuant to §
1915); Bryant v. Chisoim, No. CV411-066 (S.D. Ga. Jun. 15, 2011)

(dismissed for failure to state a claim); Bryant v. Corizon Health Care

Servs., No. CV411-178 (S.D. Ga. Dec. 12, 2011) (dismissed for failure to
exhaust his administrative remedies). Accordingly, without a showing of
"imminent danger of serious physical injury," his complaint is subject to
dismissal.
In order to fit within the "imminent danger" exception, Bryant must
make "specific allegations of present imminent danger that may result in
serious physical harm." Skillern v. Jackson, 2006 WL 1687752 at *2 (S.D.
Ga. June 14, 2006) (citing Brown v. Johnson, 387 F.3d 1344, 1349 (11th
Cir. 2004)). General and conclusory allegations not grounded in specific
facts will not suffice. Margiotti v. Nichols, 2006 WL 1174350 at *2 (N.D.
Fla. May 2, 2006). Nor can "a prisoner. . . create the imminent danger so
as to escape the three strikes provision of the PLRA." Ball v. Allen, 2007
WL 484547 at *2 (S.D. Ala. Feb. 8, 2007) (citing Muhammad v.

McDonough, 2006 WL 1640128, at *1 (M.D. Fla. June 9, 2006)). In this
case, Bryant's claims relate to misconduct committed at the time of his
arrest and prosecution and have nothing whatsoever to do with his

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current confinement. Nowhere does he allege that he faces any sort of
present danger, imminent or otherwise.
Because Bryant is three-strikes barred, his complaint (doe. 1) should
be dismissed. As an alternative basis for dismissal, the Court notes that
Bryant's illegal search claim arose more than two years prior to filing this
suit. Hence, that claim is time-barred under the applicable statute of
limitations. Williams v. City of Atlanta, 794 F.2d 624, 626 (11th Cir. 1986)
("the proper limitations period for all section 1983 claims in Georgia is the
two-year period set forth in O.C.G.A. § 9-3-33 for personal injuries."). He
seeks damages for the remainder of his claims (doe. 1 at 9), but former
District Attorney Larry Chisolm cannot be sued for damages in his
individual capacity for his prosecutorial decisions.

See Imbler v.

Pachtman, 424 U.S. 409, 431 (1976) ("[I]n initiating a prosecution and in
presenting the State's case, the prosecutor is immune from a civil suit for
damages under § 1983."); Jones v. Cannon, 174 F.3d 1271, 1281 (11th Cir.
1999) ("[Albsolute immunity extends to a prosecutor's 'acts undertaken..
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. . . .").
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Nor can he be sued for damages in his official capacity, because such suits
are barred by Eleventh Amendment sovereign immunity.' Kentucky v.
Graham, 473 U.S. 159, 166-67 (1985) (the Eleventh Amendment prohibits
claims for damages against a state unless the state has waived immunity;
official capacity suits against state officials are effectively suits against the
state, so the same protection applies). Finally, defendants Carvana and
Martin cannot be sued at all under § 1983, because they are not state
actors, as the statute requires. Polk County v. Dodson, 454 U.S. 312, 325
(1981) (public defenders do not act as state actors, and they are thus not
suable under § 1983). Hence, even if Bryant pays the filing fee, his suit is
doomed to fail.
For all of the reasons explained above, Bryant's case should be
DISMISSED WITH PREJUDICE.

1

"[S]uits against an official in his or her official capacity are suits against the
entity the individual represents." Parker v. Williams, 862 F.2d 1471, 1476 n.4 (11th
Cir. 1989). The question, for purposes of § 1983 liability, of whether an official acts on
behalf of the state or county is a question of state law. The Eleventh Circuit has
examined this issue and determined that "the district attorney's authority over
prosecutorial decisions. . . is vested by state law pursuant to state authority." Owens
v. Fulton County, 877 F.2d 947, 952 (11th Cir. 1989).
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SO REPORTED AND RECOMMENDED this 13iay

of June,

2013.

UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA