Sellers v. Gratton et al

Filing 9

REPORT AND RECOMMENDATIONS dismissing without prejudice 6 Amended Complaint filed by Eddie Lee Sellers, Jr. Objections to R&R due by 3/13/2017. Signed by Magistrate Judge G. R. Smith on 2/24/17. (jlm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
EDDIE LEE SELLERS, JR.,
Plaintiff,
v.

Case No. CV416-303

OFFICER DAVID GRATTON and
OFFICER JUSTIN JENKINS,
Defendants.

REPORT AND RECOMMENDATION
Inmate plaintiff Eddie Lee Sellers, Jr. brings this 42 U.S.C. § 1983
case against two police officers. 1

Doc. 6. His Statement of Claim

(unedited, and in its entirety):

1

He proceeds in forma pauperis (IFP) (doc. 5), 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
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).

On the 21st day of July I was falsely accused and arrested for
possession of firearm, reckless conduct and criminal trespass at
506B Emerald dr. That wasn’t my home. I was visiting. Shanice
Matthews was the owner of the house. Officer David Gratton with
his assisting officer Justin Jenkins came without a warrant at
about 10:15 p.m. searched the frigerator found a gun after pulling
me and two other people out of the house. Comes out with it and
say its mine which wasn’t true. The owner Shanice Matthews
asked about the warrant and it wasn’t on hand. I was then
transported to precient 2 where I received defected warrants
consist of my name being wrong, birth date and also no notary and
the search warrant was the same without the owners name on it.
Doc. 6 at 5.
Sellers “would like for justice to be served and I would like to be
compensated for my pain and suffering and losses.” Doc. 6 at 6
(“Relief”). He neglects to inform this Court, however, that he is being
prosecuted for felony possession of a firearm by a convicted felon,

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,
328 (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).

2

criminal trespass (misdemeanor) and reckless conduct (misdemeanor).

See attached state court docket sheet.
That docket shows that he was indicted, which sinks any invalidarrest claim (to the extent he may be said to raise one). “[T]he Supreme
Court has held that probable cause is established by an indictment
returned by a federal grand jury.” Kalina v. Fletcher, 522 U.S. 118, 130
(1997); see also Park Manor Ltd. v. U.S. Dept. of Health and Human

Services , 495 F.3d 433, 437 (7th Cir. 2007) (finding ‘an indictment
establishes probable cause to believe the defendant [is] guilty of crime,
and no more is required to justify instituting a criminal proceeding.’).”

United States v. Anzaldi , 2013 WL 393326 at * 4 (N.D. Ill. Jan. 31, 2013).
And his own allegations show that he has no standing to complain
about a search of, and thus the privacy interest violated in, someone

else’s home.

See, e.g., Rakas v. Illinois , 439 U.S. 128, 134 (1978)

(“A person who is aggrieved by an illegal search and seizure only through
the introduction of damaging evidence secured by a search of a third
person’s premises or property has not had any of his Fourth Amendment
rights infringed.”); United States v. Garcia , 741 F.2d 363, 366 (11th Cir.
1984) (“[M]ere presence in the apartment would not be enough to give
3

[Sellers] standing, for the precedents binding on this court require that
an occupant other than the owner or lessee of an apartment demonstrate
a significant and current interest in the searched premises in order to
establish an expectation of privacy.”).
Given its facial frivolity, plaintiff’s Complaint must be

DISMISSED WITH PREJUDICE with no re-pleading option
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
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

2

defendants’ immunity). 2 And because of its frivolity, this case should be
recorded as a “strike” under 28 U.S.C. § 1915(g). 3
Meanwhile, plaintiff must pay his $350 filing fee. His furnished
account information shows that he has had a $16.67 average monthly
balance and $0.02 in monthly deposits in his prison account during the
past three months. Doc. 7 at 1. He therefore owes a $3.33 initial partial

2

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)).
3

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).

5

filing fee. See 28 U.S.C. § 1915(b)(1) (requiring an initial fee assessment
“when funds exist,” under a specific 20 percent formula). His 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 Sellers’ account custodian immediately. In
the event he is transferred to another institution, plaintiff’s present
custodian shall forward a copy of this R&R 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
R&R.
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
11

Recommendations.” Any request for additional time to file objections
should be filed with the Clerk for consideration by the assigned district
judge.
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 24th day of
February, 2017.

-....

UMI'FD STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

7

Case Details

http://www.chathamcourts.org/Case-Details/easeno/CR161797

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Case Information

Defendant Information

Court:

Supedor

Name:

SELLERS, EDDiE LEE JR

Case Number:

CR161797

DIN:

S5015185

Case Type:

P055 WEAPON/CONV FELON

Gender: MALE

Judge:

JUDGE WALMSLEY

Race:

AFRICAN
AMERICAN

1-bight:

70

Assistant District Attorney: NANCY GREY SMITH
Date Filed:

9/20/2016

Status:

ACTIVE-

Next Event:

4/20/2017 ARRAIGN/TRIAL
DOCKET CALL

Weight: 150
Eyes:

BROWN

Hair:

BLACK

Attorney Information
LAN PUCZKOWSKI
PUBLIC DEFENDERS OFFICE
SAVANNAH, GA
31412
Bondsman Information
N/A
Case Events
DatQ

WALMSLEY

]RRA1G N/TRIAL DOCKET CALL

[09:00AM

12/5/2016

11:00AM

ARRAIGNMENT

10/24/2016

10:00AM

ARRAIGN M ENT/CALEN DAR CALL

[Return to

Action

Judge

Code

Time

4/20/2017

-

ARRAIGNMENT

JWALMSLEY
IWALMSLEY

Ton]

Charges
[Charge

Counts Severity

Description

16-11-131 POSSESS FIREARM BY CONVICTED FELON

11

16-5-60(B) MISDEMEANOR RECKLESS CONDUCT
16-7-21

CRIMINAL TRESPASS

-

IFELONY

Charge Date

Disposition

[7/22/2016 1:25:11 AM

1

- - MISDEMEANOR - 7/22/2016 1:25:47 AM

1

MISDEMEANOR 7122/2016 1:25iBAM

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Proceedings
4/20/2017
1/13/2017
12/5/2016
11/3/2016
10/31/2016
10/24/2016

0900AM ARRAIGN/TRIAL DOCKET CALL
SCHEDULING ORDER
11:00AM ARRAIGNMENT
j±D ORDER
PETITIONFOR BOND/N5I

ARRAIGNMENT WALMSLEY
DENIED!
FEUOA SPEARS/

10:00AM ARRAIGNMENT/CALENDAR CALL

10/13/2016

ENTRY OF APPEARANCE

10/13/2016

I of2

- ..........I

WALMSLEY

FEUIA

DEFENDANTS ELECTION TO PROCEED
UNDER OCGA 17-16-1

2/24/2017 1L37 AM

Case Details

http://www.chathamcourts.org/Case-Details/caseno/CR161797

SE LETTER RECEIVED
INITIAL CASE SCREENING /
SCANNING

1:46:41 PM
9/20/2016

COURT APPOINTMENT STILL IN
LIP STATUS PER KEONDRA

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