Gibbs v. Savannah-Chatham County Metropolitan Police Department et al
Filing
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ORDERED that plaintiff, within fourteen days of the date of this Order, shall Amend re 2 MOTION for Leave to Proceed in forma pauperis filed by Oceanus Sterling Gibbs. Signed by Magistrate Judge G. R. Smith on 2/10/2016. (loh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
OCEANUS STERLING GIBBS,
Plaintiff,
v.
SAVANNAH-CHATHAM
METROPOLITAN POLICE
DEPARTMENT and OFFICER
NICHOLAS WISSNER,
Case No. CV416-040
Defendant.
ORDER
Proceeding pro se , Oceanus Gibbs nominally asserts libel and
defamation claims against the Savannah-Chatham Police Department
and one of its officers. Doc. 1. He claims that on August 12 (of what year
he does not say) “plaintiff received a phone call in reference to the safety
of his daughter.” Doc. 1 at 2. While “under a psychosis state” from pain
medication “due to a work related back injury,” Gibbs then called 911.
Id. The police arrived, at which point “[t]he defendant perceived the
plaintiff as a threat” and arrested him. Id. at 2-3. He contends that the
police violated “plaintiff’s due process . . . as it relates to Durham v.
United States ,” and seeks $1.1 million in compensatory damages. Id. at
3, 5.
Courts are obligated to liberally construe pro se complaints, but
they may not serve “as de facto counsel for the litigant or rewrite an
otherwise deficient pleading in order to sustain an action.”
Campbell v.
Air Jamaica Ltd. , 760 F.3d 1165, 1168 (11th Cir. 2014). Here, Gibbs
hasn’t given the Court much to construe that makes sense. He never
pleads facts to show how his arrest violated due process, much less
informs the Court why Officer Wissner arrested him or when it occurred.
Nevertheless, because of his pro se status, and in view of Fed. R. Civ. P.
15(a)’s admonition to give leave freely “when justice so requires,” the
Court will give him another chance to rewrite his otherwise deficient
pleading in order to sustain this action.
This time, however, Gibbs must include a coherent (his current
narrative contains so many gaps that piecing together what he alleges
happened is nigh on impossible) “short and plain statement of the claim
showing” that he is entitled to the relief he seeks. Fed. R. Civ. P. 8(a)(2).
That means he must present the Court with the factual allegations that
support his claims. See Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555
2
(2007) (complaints must contain factual allegations “sufficient to raise a
right to relief above the speculative level”). Mere conclusions that a
defendant has harmed Gibbs, or that it violated the law, will not do. See
Ashcroft v. Iqbal , 556 U.S. 662, 679 (2009). Gibbs must file his amended
complaint within 14 days of the day this Order is served or face a
recommendation of dismissal.
Gibbs, who lists a non-prison address, also seeks leave to file his
case in forma pauperis (“IFP”). Doc. 2. The Court is not satisfied with
his indigency affidavit. He claims no monthly income and no assets or
expenses, including no rent, food, utility, or other regular monthly bills.
Doc. 2 at 1-2. He swears he has no dependents, yet claims $24,490 in
child support obligations (he also says he owes $40,754.45 in student
loans). Id. at 2. Id. at 2. That’s plainly not credible. Wary of such
indigency claims and cognizant of how easily one may consume a public
resource with no financial skin in the game, 1 this Court demands
1
“[A] litigant whose filing fees and court costs are assumed by the public . . . lacks
an economic incentive to refrain from filing frivolous, malicious, or repetitive
lawsuits.” Neitzke v. Williams , 490 U.S. 319, 324 (1989). Courts thus deploy
appropriate scrutiny. See Hobby v. Beneficial Mortg. Co. of Va ., 2005 WL 5409003 at
*7 (E.D. Va. June 3, 2005) (debtor denied IFP status where, although she was unable
to find employment as a substitute teacher, she had not shown she is unable to work
and earn income in other ways); In re Fromal, 151 B.R. 733, 735 (E.D. Va. 1993)
(denying IFP application where debtor was licensed attorney and accountant and she
supplemental information from dubious IFP movants. See, e.g. , Kareem
v. Home Source Rental , 986 F. Supp. 2d 1345, 1346-48 (S.D. Ga. 2013);
Robbins v. Universal Music Group , 2013 WL 1146865 at * 1 (S.D. Ga.
Mar. 19, 2013). 2
To that end, it tolerates no lies. Ross v. Fogam , 2011 WL 2516221
at * 1 (S.D. Ga. June 23, 2011) (“Ross, a convicted criminal, chose to
burden this Court with falsehoods, not honesty. The Court thus rejects
Ross's show cause explanation, as it is clear that he purposefully chose to
disguise his filing history and financial status.”); Johnson v. Chisolm ,
2011 WL 3319872 at * 1 n. 3 (S.D. Ga. Aug. 1, 2011) (“This Court does
not hesitate to invoke dismissal and other sanctions against inmates who
lie to or otherwise deceive this Court.”); see also Moss v. Premiere Credit
offered no reason why she cannot find employment), cited in In re Zow , 2013 WL
1405533 at * 2 (Bkrtcy. S.D. Ga. Mar. 4, 2013) (denying IFP to “highly educated”
bankruptcy debtor who, inter alia, had “not shown he is physically unable to work or
earn income in other ways.”); Nixon v. United Parcel Serv. , 2013 WL 1364107 at *1-2
(M.D. Ga. Apr. 3, 2013) (court examined income and expenses on long-form IFP
affidavit and determined that plaintiff in fact had the ability to pay the court’s filing
fee).
2
See also Lister v. Dep’t of Treasury , 408 F.3d 1309, 1313 (10th Cir. 2005) (court did
not abuse its discretion by denying IFP status to Social Security benefits claimant
seeking judicial review of Commissioner's benefits denial; claimant, after having been
specifically instructed on how to establish IFP status, failed to fill out proper forms or
otherwise provide court with requisite financial information); Mullins v. Barnhart,
2010 WL 1643581 at * 1 (D. Kan. Mar, 30, 2010) (denying, after scrutinizing IFP
affidavit’s financial data, leave to proceed IFP on financial ability grounds).
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of North America, LLC , CV411-123, doc. 54 (S.D. Ga. Mar. 6, 2013)
(Eleventh Circuit Order: “Moss's [IFP on appeal] motion is DENIED
because her allegation of poverty appears to be untrue in light of her
financial affidavit and filings in the district court.”). 3
Given the totality of the circumstances, it will do likewise here. 4
Therefore, within 14 days from the date this Order is filed, Gibbs shall
disclose to the Court the following information:
3
Furthermore, liars may be prosecuted. See United States v. Dickerson , CR608-36,
doc. 1 (S.D. Ga. Dec. 11, 2008) (§ 2255 movant indicted for perjury for knowingly
lying in his motion seeking collateral relief from his conviction); id ., doc. 47 (guilty
verdict), cited in Colony Ins. Co. v. 9400 Abercorn, LLC , 866 F. Supp. 2d 1376, 1378 n.
2 (S.D. Ga. 2012) (collecting sanction cases).
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Two important points must be underscored:
First, proceeding [IFP] in a civil case is a privilege or favor granted by the
government. Rowland v. Cal. Men's Colony, Unit II Men's Advisory Council ,
506 U.S. 194, 198, 113 S.Ct. 716, 121 L.Ed.2d 656 (1993). Second, the statute
reads that the court “may authorize the commencement” of an action. 28
U.S.C. § 1915(a)(1). The grant, denial, or other decision concerning an [IFP]
application requires the court to exercise discretion. Denton v. Hernandez , 504
U.S. 25, 31, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992); see also Lee v. McDonald's
Corp ., 231 F.3d 456, 458 (8th Cir.2000) (explaining the purpose of 28 U.S.C. §
1915 and stating the decision of whether to grant or deny [IFP] status under
28 U.S.C. § 1915 is discretionary).
Lafontaine v. Tobin , 2013 WL 4048571 at * 1 (N.D. Iowa Aug. 9, 2013) (emphasis
added); see also Marceaux v. Democratic Party, 79 F. App’x 185, 186 (6th Cir.
2003) (no abuse of discretion when court determined plaintiff could afford to pay
the filing fee without undue hardship because he has no room and board expenses,
owns a car, and spends the $250.00 earned each month selling plasma on
completely discretionary items).
(1)
What he spends each month for basic living expenses such as
food, clothing, shelter, and utilities, and the dollar value of
any public or private assistance he may receive;
(2)
Where he gets the money to pay for those expenses (include
all “off-the-books” income, whether in cash or in-kind);
(3)
Whether he owns any means of transportation and, if he does
not, whether he has regular access to same, as owned by
another (including a rental company);
(4)
Whether he possesses a cellular telephone, TV set, and any
home electronics equipment (include estimated value and
related carrying expenses, such as carrier and subscription
fees);
(5)
Whether he is the account owner, or has signature power, as
to any accounts with a bank or other financial institution;
(6) Whether he anticipates any future income within the next
year;
(7)
A list of any other cases showing an indigency-based, filing fee
reduction or waiver granted by any other court (include the
full case name, case number and the name of the court
granting same).
Answering these points will better illuminate Gibbs’ true financial
condition. In that regard, he must declare the facts he pleads to be true
under penalty of perjury. If he does not use a preprinted IFP form to
respond (hence, if he uses a blank sheet of paper), he must insert this
above his signature: “I declare under penalty of perjury under the laws of
the United States of America that the foregoing is true and correct.
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Executed on (date). 28 U.S.C. § 1746(1).” The Clerk is DIRECTED to
serve with this Order a blank IFP form for Gibbs’ convenience. Failure
to comply with this directive will result in a recommendation of
dismissal. See Kareem v. Home Source Rental , 2014 WL 24347 at *1
(S.D. Ga. Jan. 2, 2014).
SO ORDERED, this 10th day of February, 2016.
UNITED STATES MAGISTRATE ILJDGE
SOUTHERN DISTRICT OF GEORGIA
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