Fredrick v. Georgia Superior Clerks Cooperative Authority et al

Filing 18

REPORT AND RECOMMENDATIONS dismissing without prejudice the 14 Complaint filed by Dante G. Fredrick, revoking the 15 MOTION for Leave to Proceed in forma pauperis filed by Dante G. Fredrick. As to any future civil actions sought to be commenced in forma pauperis (IFP) by plaintiff, the Clerk be DIRECTED to receive the papers, open a single miscellaneous file for tracking purposes, and forward them to the presiding judge for a determination as to whether plaintiff qualifies for an exception to the "three strikes" bar to IFP status (in other words, has demonstrated he is in imminent danger of seriousphysical injury) and whether he has stated a civil rights claim with anyarguable merit. Only if the pleading alleges a plausible c laim for reliefwill the Court allow it to be filed. IFP complaints that fail to pass muster shall be DISMISSED without any further judicial action after THIRTY (30) DAYS from the date the Clerk receives the Complaint,unless the Court orders otherwise . This automatic dismissal ofinsubstantial claims "will reduce the burden of paper-moving andexplanation-writing, conserving a little judicial time for litigants whodeserve attention. Thus, although the Court will read and considerany future IFP application and complaint that Fredrick endeavors to file, it will not necessarily enter an order addressing the IFP application orcomplaint. If no order is forthcoming, then THIRTY (30) DAYS afterthe Complaint's receipt the Clerk shall, withou t awaiting any furtherdirection, notify Fredrick that his case has been dismissed per the formattached as an appendix to this R&R. Objections to R&R due by 4/24/2017. Signed by Magistrate Judge G. R. Smith on 4/10/17. (wwp) Modified on 4/10/2017 (wwp).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
DANTE G. FREDRICK,
Plaintiff,
V.

CV416-310
F. BARRY WILKES, J. WILLIAMS,

Defendants.
REPORT AND RECOMMENDATION
Dante Fredrick has filed this civil rights case against defendants
Wilkes and Williams, clerks for the Superior Court of Liberty County.
Doc. 1 (alleging defendants refused to docket a civil action that he
submitted for filing in that court). Fredrick was granted leave to
proceed in forma pauperis (IFP) based upon his representation that,
while he had filed civil lawsuits "in the federal courts," "none of the cases
[had been] dismissed [be]cause of frivolousness, maliciousness, or failure
to state a claim." Does. 1 at 2 (attesting he had repeatedly voluntarily
dismissed cases, so as not to result in a "strike") & 14 at 2 (attesting he
has "no strikes" because "none of [his] filings was dismissed for
11

frivolousness, maliciousness, or failure to state [a] claim"). Fredrick,
however, lied to this Court.
I. (More Than) Three Strikes
A review of Plaintiffs history of filings reveals that he has brought
numerous civil actions or appeals which were dismissed and appear to
count as strikes under Section 1915(g). A non-exhaustive list of these
cases includes the following:

• Fredrick v. Danforth, et al., No. CV314-162 (S.D. Ga. April 27,
2015) (dismissed for failure to truthfully disclose litigation
history); 1

• Fredrick v. Scarlett, et al., No. V215-135 (S.D. Ga. Dec. 9, 2015)
(dismissed for failure to state a claim); and

• Fredrick v. Williams, No. CV616-073 (S.D. Ga. Aug. 24, 2015)
(dismissed for failure to state a claim).

1

Dismissals for providing false filing-history information and failing to comply with
court orders both fall under the category of "abuse of the judicial process," which the
Eleventh Circuit has held to be a "strike-worthy" form of dismissal under § 1915(g).
See Rivera v. Aiim, 144 F.3d 719, 723 (11th Cir. 1998) ("[D]ismissal for abuse of the
judicial process is precisely the type of strike that Congress envisioned when drafting
section 1915(g)."), abrogated on other grounds by Jones v. Bock, 549 U.S. 199 (2007);
Maiautea v, Suzuki Motor Co., 987 F.2d 1536, 1544 (11th Cir. 1993) (characterizing
failure to comply with court orders as "abuse of the judicial process").
2

Prisoner plaintiffs may seek leave to proceed in "any suit, action or
proceeding, civil or criminal, or appeal therein, without prepayment of
fees or security therefor" pursuant to 28 U.S.C. § 1915(a). However,
§ 1915(g) of the Prison Litigation Reform Act also provides that
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) (2006) (emphasis added). 2
This section, known as the "three strikes" provision, wards against
abusive prisoner litigants having unlimited IFP access to the courts to
pursue frivolous, malicious or meritless claims. "Three strikes" inmates
are not banned from the courthouse entirely, but must pay the full filing
2

Not that, only those
[t]hree specific grounds render a dismissal a strike: "frivolous," "malicious,"
and "fails to state a claim upon which relief may be granted." Under the
negative-implication canon, [they] are the only grounds that can render a
dismissal a strike. See ANTONIN SCALIA & BRYAN A. GARNER, READING LAW
107-11 (2012). Neither "lack of jurisdiction" nor "want of prosecution" are
enumerated grounds, so a dismissal on either of those bases, without more,
cannot serve as a strike.

Daker v. Comm'r, Georgia Dept. of Corr., 820 F.3d 1278, 1283-84 (11th Cir. 2016); see
also id. (the dismissal of a prisoner's action or appeal for want of prosecution, even
after a single judge of the Court of Appeals has denied an IFP petition on frivolity
grounds, does not result in a "strike.").
3

fee before they may proceed. And Fredrick already knows that he has
three strikes.

See, e.g., Fredrick v. McLaughlin, No. 317-056 (M.D. Ga.

Mar. 28, 2017) (denying IFP and dismissing under "three strikes"
provision of § 1915(g)). Despite this, he attested that he his cases have
never counted as a "strike" under the PLRA. Does. 1 at 2 & 14 at 2.
II. Dismissal Pursuant to Rule 11
Given that Fredrick intentionally misled the Court, sanctions are
warranted. Fed. R. Civ. P. Rule 11(b) "forbids lying in pleadings,
motions, and other papers filed with the court."

Zocaras i'. Castro, 465

F.3d 479, 484 (11th Cir. 2006). "Rule 11(c) provides for sanctions
concerning misrepresentations made in papers filed with the court under
Rule 11(b)."

Id. at 490; see also 5A Charles Allan Wright & Arthur R.

Miller, FED. PRAc. & PROC. § 1335 (3d ed. 2004) (noting that courts have
deemed sanctions appropriate to punish various forms of party
misconduct). And Rule 41(b) "expressly authorizes the involuntary
dismissal of a claim for plaintiff's failure to abide" by the Rules.

Zocaras, 465 F.3d at 490; State Exch. Bank v. Hartline, 693 F.2d 1350,
1352 (11th Cir.1982).

Further, "the power of a court to dismiss a claim is inherent in a
trial court's authority to enforce its orders and ensure prompt disposition
of legal actions."

Zocaras, 465 F.3d at 490; Link v. Wabash R.R. Co., 370

U.S. 626 1 630-31 (1962); Hartline, 693 F.2d at 1352. The Eleventh
Circuit approves of dismissals under the inherent power where a litigant,
in bad faith, fails to disclose his prior cases on a form complaint.

Young

v. Secy Fla. for the Dep't of Gorrs., 380 F. App'x 939, 940-41 (11th Cir.
June 1, 2010) (affirming dismissal under inherent power for plaintiff's
failure to disclose his prior cases on the court's complaint form); see

Rivera, 144 F.3d 719 1 731 (11th Cir.1998) (district court did not abuse its
discretion by dismissing an action without prejudice where plaintiff "had
lied under penalty of perjury about the existence of a prior lawsuit").
While a prisoner's pro se pleading is entitled to liberal construction,
that doctrine presupposes that the prisoner was honest and forthright
with the Court. Providing false responses to the Court's inquiries is
sanctionable conduct and undermines the administration of justice.

See

Morefleid v. DuPree, 2008 WL 5100926 at * 3 (S.D. Ga. Dec. 3, 2008)
(dismissing action without prejudice where plaintiff abused the judicial
process by providing dishonest information about his prior filing history);
61

Gillilan v. Walker, 2007 WL 842020 at *1 (S.D. Ga. Mar. 15, 2007) (same).
It is clear that Fredrick, in bad faith, attempted to mislead the Court as to
his filing history' to circumvent the § 1915(g) "three strikes" bar.' His
Complaint should be dismissed without prejudice as a sanction for his
dishonesty, and the Court warns Fredrick that such false responses will
not be tolerated and may result in more severe and long-term sanctions in
the future. Such a dismissal counts as (yet another) § 1915(g) strike
against him.

Pinson v. Grimes, 391 F. App'x 797, 799 (11th Cir. Aug. 9,

2010); see also Daker v. Bryson, 2017 WL 1053082 at * 3 (S.D. Ga. Mar.
20, 2017) (analyzing what constitutes a strike).

In fact, Fredrick has more than earned the label of frequent filer, having filed over
a dozen civil actions in this Court alone. See, nonexhaustively, Fredrick v. Hooks, et
al., No. CV314-153 at does. 13 & 18 (dismissed for failure to comply with court order
and for failure to prosecute); Fredrick v. Danforth, et al,, No. CV314-162 at does. 11 &
14 (dismissed without prejudice as sanction for providing dishonest information about
his prior filing history); Fredrick v, Fountain, et al., No. CV615-052 at does. 9 & 11
(voluntarily dismissed); Fredrick v. Douglass, No. CV615-102 at does. 6 & 7
(voluntarily dismissed); Fredrick v. Cavendar, No. CV615-104 at does. 6 & 7
(voluntarily dismissed); Fredrick v. Scarlett, et at., No. CV215-135 at does. 5 & 8
(dismissed for failure to state a claim); Fredrick v. Georgia, No. CV215-163 at does. 8 &
10 (dismissed for lack of jurisdiction); Fredrick v. Georgia, No. CV215-173 at does. 5 &
6 (dismissed for lack of jurisdiction); Fredrick v. Williams, No. CV616-073 at does. 5 &
7 (dismissed for failure to state a claim); Fredrick v. Glynn County State Court, No.
CV216-074 at does. 4 & 11 (dismissed for lack of jurisdiction); Fredrick v. Douglas, No.
CV615-120 (pending). See also, Fredrick v. McLaughlin, No. 317-056 (M.D. Ga.)
(denying IFP and dismissing under "three strikes" provision of § 1915(g)).
Fredrick may show cause why his conduct has not violated Rule 11(b) in his
objections to this Report and Recommendation. Fed. R. Civ. P. 11(c)(3).
6

II.

FREDRICK'S

IFP STATUS

Because plaintiff has filed at least three previously dismissed cases
or appeals which qualify as strikes under Section 1915(g), he may not
proceed IFP in this action unless he can demonstrate that he meets the
"imminent danger of serious physical injury" exception to Section
1915(g). "In order to come within the imminent danger exception, the
Eleventh Circuit requires specific allegations of present imminent danger
that may result in serious physical harm."

Odum v. Bryan Cly. Judicial

Circuit, 2008 WL 766661 at *1 (S.D. Ga. Mar. 20, 2008) (quotes & cites
omitted). General and conclusory allegations not grounded in specific
facts indicating that injury is imminent cannot invoke the Section
1915(g) exception.

Margiotti v. Nichols, 2006 WL 1174350, at *2 (N.D.

Fla. May 2, 2006). The danger must also exist at the time the complaint
was filed -- it cannot have already passed and it cannot be based upon
some speculative, future harm.

Medberry v. Butler, 185 F. 3d 1189 (11th

Cir. 1999). "Additionally, it is clear that a prisoner cannot create the
imminent danger so as to escape the three strikes provision of the
PLRA."

Bail v. Allen, 2007 WL 484547, at *2 (S.D. Ala. Feb. 8, 2007)

(quotes and cites omitted). Fredrick's Complaint makes no allegations

about an imminent risk of physical danger, much less any facts
supporting such an allegation. He does not fall under the exception, and
thus cannot continue IFP in this matter.
However, IFP status was already (erroneously) granted.
Numerous courts have interpreted § 1915(g) as empowering them to
revoke a prisoner's previously granted IFP status when it later became
evident that the original IFP grant was improper.

See, e.g., Davis v.

Thomas Cty. Sheriff's Dept, 2006 WL 2567883 at *2 (M.D. Ga. Sept. 5,
2006); Magee v. Clinton, 2005 WL 613248 (D.C. Cir. Mar. 14, 2005);

Smiley v. Parker, 2004 WL 1147124 (4th Cir. May 19, 2004); Adepegaba

U.

Hammons, 103 F.3d 383 (5th Cir. 1996). These holdings reflect that
"there is no absolute 'right' to pursue a civil appeal [IFP]; rather it is a
privilege extended to those unable to pay filing fees in a timely manner."

Adepegaba, 103 F.3d at 386. It follows that a plaintiff's privilege to
proceed IFP should be reevaluated if and when information comes to light
that calls into question whether he was initially eligible for that privilege.
Finally,
the proper procedure is for the district court to dismiss the
complaint without prejudice when it denies the prisoner leave to
proceed in forma pauperis pursuant to the three strikes provision of
[.J

§ 1915(g). The prisoner cannot simply pay the filing fee after being
denied in forma pauperis status. He must pay the filing fee at the
time he initiates the suit.

Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002); see 28 U.S.C.
§ 1915(g) ("In no event" may a prisoner proceed IFP when he fails to
meet the conditions of the statute). In other words, an inmate denied
IFP status based on the three strikes provision must file his lawsuit
anew.
As noted above, Fredrick has accumulated at least three strikes and
has made no showing that he was "under imminent danger of serious
physical injury" when his complaint was filed. Thus, his request to
proceed IFP should never have been granted, and his IFP status should
be immediately revoked pursuant to § 1915(g).
As a result of this revocation, the court should also dismiss
Fredrick's claim without prejudice. He may not pay his filing fee after
being denied and revive his case.

See Dupree, 284 F.3d at 1236. This

dismissal neither affects Fredrick's substantive rights nor blocks his
access to the courts. While he is free to pursue any claim he wishes to
bring, Fredrick must do so without the privilege of proceeding IFP unless
he can show he is "under imminent danger of serious physical injury."

IV. SPECIAL CASE MANAGEMENT
The time has come to manage an inmate who won't manage
himself. Fredrick has demonstrated that he will continue undeterred
even in the face of the Court's repeated admonitions. In that regard, the
Court recognizes that "[a]ccess to the courts is unquestionably a right of
considerable constitutional significance," but it "is neither absolute nor
unconditional." Miller v. Donald, 541 F.3d 1091, 1096 (11th Cir. 2008)
(quoting Gofleid v. Ala. Pub. Seri). Comm'n, 936 F.2d 512, 516 (11th Cir.
1991)). Sometimes, "[c]onditions and restrictions on [a] person's access
are necessary to preserve the judicial resource for all other persons."

Id.

"Frivolous and vexatious law suits," like those continually pressed by
Fredrick, "threaten the availability of a well-functioning judiciary to all
litigants." Id. 5

"Every lawsuit filed, no matter how frivolous or repetitious, requires the
investment of court time, whether the complaint is reviewed initially by a law clerk, a
staff attorney, a magistrate, or the judge." Procup v. Strickland, 792 F.2d 1069, 1072
(11th Cir. 1986). The federal courts thus have used a variety of "injunctive devices"
to protect their dockets from abuse by litigants who monopolize judicial resources
through the serial riling of frivolous lawsuits, and they have "considerable discretion"
in selecting the appropriate measure to curtail such abuse. Id. at 1072, 1074.
Courts, however, may not "completely close the courthouse doors to those who are
extremely litigious." Cofield V. Alabama Public Service Comm'n, 936 F.2d 512, 517
(11th Cir. 1991); Miller, 541 F.3d at 1097 (in dealing with an abusive litigant, courts
may "not impose blanket prohibitions on" all future filings by that litigant). But they
are empowered to impose severe restrictions on an abusive litigant's ability to file
10

V. CONCLUSION
In sum, the Court RECOMMENDS that plaintiff Dante
Fredrick's IFP status be REVOKED and his Complaint be DISMISSED
without prejudice.

D 'Angelo v. Screven county commissioners, 2016

WL 7013523 at *2 (S.D. Ga. Nov. 8, 2016).

Further, he should be placed

in Special Case Management status. Accordingly, the Court
RECOMMEDS that the following restrictions be imposed upon plaintiff:
1. As to any future civil actions sought to be commenced in

forma pauperis (IFP) by plaintiff, the Clerk be DIRECTED to receive the
papers, open a single miscellaneous file for tracking purposes, and
forward them to the presiding judge for a determination as to whether
plaintiff qualifies for an exception to the "three strikes" bar to IFP status
(in other words, has demonstrated he is in imminent danger of serious
physical injury) and whether he has stated a civil rights claim with any
arguable merit. Only if the pleading alleges a plausible claim for relief
will the Court allow it to be filed. IFP complaints that fail to pass
muster shall be DISMISSED without any further judicial action after

further cases, including the requirement "to seek leave of court before filing pleadings
in any new or pending lawsuit." Procup, 792 F.2d at 1072.
11

THIRTY (30) DAYS from the date the Clerk receives the Complaint,
unless the Court orders otherwise. This automatic dismissal of
insubstantial claims "will reduce the burden of paper-moving and
explanation-writing, conserving a little judicial time for litigants who
deserve attention. 116 Thus, although the Court will read and consider
any future IFP application and complaint that Fredrick endeavors to file,
it will not necessarily enter an order addressing the IFP application or
complaint. If no order is forthcoming, then THIRTY (30) DAYS after
the Complaint's receipt the Clerk shall, without awaiting any further
direction, notify Fredrick that his case has been dismissed per the form
attached as an appendix to this R&R.
2.

The Clerk shall not docket any further petitions, motions, or

papers in this case. The Clerk also shall not docket any further
petitions, motions or papers in a case automatically dismissed pursuant to
the directive above -- except for a notice of appeal. Any papers other
than a notice of appeal shall be returned to plaintiff unfiled. If he files a
6

This mechanism allows the Court to manage its own docket while still allowing
plaintiff sufficient access to the Courts if he is in immediate danger. See, e.g., Heard
v. Donald, 310 F. App'x 348 (11th Cir. 2009) (holding that a restriction of prisoner
filings must allow for the immediate-danger exception, because courts should "not
close off the litigation avenues that Congress specifically left open under § 1915(g)).
12

notice of appeal, the Clerk shall forward a copy of this Order, the notice of
appeal, and the dismissed Complaint to the Court of Appeals. Plaintiff
shall remain responsible for appellate filing fees or he may move this
Court to grant IFP status on appeal.
3.

To ensure that all future pleadings filed by Fredrick are

properly consolidated for review, the Clerk shall personally advise each
deputy clerk of the Court's ruling in this case and develop a procedure for
ensuring that all future complaints filed by Fredrick are immediately
assigned and forwarded to the presiding district judge in this case,
regardless of which divisional clerk's office receives and dockets the
papers.
4.

Plaintiff may file a motion to modify or rescind the imposition

of these restrictions NO EARLIER THAN ONE (1) YEAR from the
date of this Order.
5.

A copy of this R&R shall be forwarded to each judicial officer

in this district.
This Report and Recommendation (R&R) is submitted to the
district judge assigned to this action, pursuant to 28 U.S.C.
§ 636b)(1)(B) and this Court's Local Rule 72.3. Within 14 clays of
13

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 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. VA. 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 10th day of
April, 2017.

UNiTED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

151

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION

IN RE: DANTE FREDRICK

Case No. MC

)

NOTICE
TAKE NOTICE that the case that you filed in forma pauperis on
20_, has been DISMISSED WITHOUT PREJUDICE
pursuant to this Court's Order in Fredrick v. Wilkes, et al., CV416-310,
doe. 3, adopted, doe. -. The filing, a copy of which is attached hereto,
has been docketed in In re Fredrick, MC

. No further action will be

taken on your case. You may resubmit it with the full filing fee payment.
SCOTT L. POFF, Clerk
By:
Deputy Clerk

Date:

IN