McRoberts v. Karpf
REPORT AND RECOMMENDATIONS dismissing with prejudice 1 Complaint and DENYING 6 MOTION for Entry of Default filed by Joseph Martin McRoberts (Objections to R&R due by 3/9/2017). Signed by Magistrate Judge G. R. Smith on 2/22/17. (jlm)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
JOSEPH MARTIN McROBERTS,
REPORT AND RECOMMENDATION
Proceeding pro se , inmate-plaintiff Joseph Martin McRoberts brings
this 42 U.S.C. § 1983 action against the state court judge from whom he
unsuccessfully tried to obtain various forms of judicial relief (law-library
access, the discharge of his appointed criminal defense attorney, etc.).
Doc. 1 at 5. He seeks $26,000 for “emotional distress I suffered during the
time I was incarcerated and violation of my rights.”
Id. at 6. Plus he
wants the judge reprimanded and suspended for one year. Id.
Upon preliminary review, 1 his Complaint must be dismissed with
prejudice. Chatham County Superior Court Chief Judge Michael L. Karpf
McRoberts proceeds in forma pauperis (IFP) (doc. 4), so the Court is screening his
case under 28 U.S.C. § 1915(e)(2)(B)(ii) to determine whether he has stated a plausible
is absolutely immune from suit, since McRoberts alleges nothing beyond
activities that fall within his official function. See Bolin v. Story , 225 F.3d
1234, 1239 (11th Cir. 2000) (“Judges are entitled to absolute immunity for
all actions taken in their judicial capacity. . . .”) (citing Stump v.
Sparkman , 435 U.S. 349, 356-57 (1978)); see also id. (“Absolute judicial
immunity applies even when the judge’s acts are in error, malicious, or
were in excess of his or her jurisdiction.”) (quotes omitted).
Given its facial frivolity, plaintiff’s Complaint must be
DISMISSED WITH PREJUDICE and no re-pleading option is
warranted. Dysart v. BankTrust , 516 F. App’x 861, 865 (11th Cir. 2013)
(“[D]istrict court did not err in denying Dysart's request to amend her
claim for relief. 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). Whether a complaint fails to state a claim under § 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).
Thus, the 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)). Section 1915 “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.” Neitzke v. Williams , 490 U.S. 319, 109 S.Ct.
1827, 1833, 104 L.Ed.2d 338 (1989); Bilal v. Driver , 251 F.3d 1346, 1349 (11th Cir.
2001); Daker v. Bryson , 2017 WL 242615 at * 3 (S.D. Ga. Jan. 19, 2017).
complaint because an amendment would have been futile.”); Langlois v.
Traveler's Ins. Co. , 401 F. App’x 425, 426-27 (11th Cir. 2010); Simmons v.
Edmondson , 225 F. App'x 787, 788-89 (11th Cir. 2007) (district court did
not err in dismissing complaint with prejudice without first giving
plaintiff leave to amend because no amendment could have overcome the
defendants' immunity). 2 Also because of its frivolity, this case should be
recorded as a “strike” under 28 U.S.C. § 1915(g). 3 Finally, the Court
DENIES as frivolous McRoberts’ motion for entry of default. Doc. 6.
McRoberts, meanwhile, must pay his $350 filing fee. His furnished
Despite the lack of any apparent basis for viable amendment, plaintiff’s opportunity
to object to this Report and Recommendation within 14 days of service affords him an
opportunity to resuscitate his case. He may also submit an Amended Complaint
during that period, if he believes it would cure the legal defects discussed above. See
Willis v. Darden , 2012 WL 170163 at * 2 n. 3 (S.D. Ga. Jan. 19, 2012) (citing Smith v.
Stanley , 2011 WL 1114503 at * 1 (W.D. Mich. Jan. 19, 2011)).
Plaintiffs are generally required to pay a filing fee in order to institute a civil action
in a federal district court. 28 U.S.C. § 1914. Indigent prisoners may avoid prepayment
of the filing fee under 28 U.S.C. § 1915, but must surmount § 1915(g):
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). A three-striker who fails to show “imminent danger” must pay
the complete $350 filing fee when he initiates suit. Vanderberg v. Donaldson , 259 F.3d
1321, 1324 (11th Cir. 2001). Short of that, the court dismisses the Complaint without
prejudice. Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002).
account information shows that he has had a $0.00 average monthly
balance and $0.00 in monthly deposits in his prison account during the
past six months. Doc. 4. He therefore owes no initial partial filing fee.
See 28 U.S.C. § 1915(b)(1) (requiring an initial fee assessment “when
funds exist,” under a specific 20 percent formula). But plaintiff’s
custodian (or designee) shall set aside 20 percent of all future deposits
from his account and forward same 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.
The Clerk is DIRECTED to send this Report and Recommendation
(R&R) to McRoberts’ account custodian immediately. In the event he is
transferred to another institution, plaintiff’s 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 plaintiff’s 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.
This R&R is submitted to the district judge assigned to this action,
pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 72.3.
Within 14 days of service, any party may file written objections to this
R&R with the Court and serve a copy on all parties. The document should
be captioned “Objections to Magistrate Judge’s Report and
Recommendations.” Any request for additional time to file objections
should be filed with the Clerk for consideration by the assigned district
After the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district judge. The
district judge will review the magistrate judge’s findings and
recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are
advised that failure to timely file objections will result in the waiver of
rights on appeal. 11th Cir. R. 3-1; see Symonett v. V.A. Leasing Corp. , 648
F. App’x 787, 790 (11th Cir. 2016); Mitchell v. U.S. , 612 F. App’x 542, 545
(11th Cir. 2015).
SO REPORTED AND RECOMMENDED , this 22nd day of
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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