Oliver v. County of Chatham et al
ORDER denying 36 Motion for Reconsideration ; denying 46 Motion for Extension of Time; denying 53 Motion ; denying as moot 59 Motion ; denying 60 Motion for Extension of Time; denying 61 Motion for Extension of Time; denying 77 M otion to Strike ; granting 80 Motion to Substitute Attorney, granting 81 Motion to Amend/Correct; denied as moot 87 Motion to Withdraw ; terminating 88 Motion for Writ of Mandamus; denying 95 Motion to Withdraw ; denying 96 Motion f or Sanctions; denying as moot 106 Motion ; denying 107 Motion ; denying 108 Motion to Appoint Counsel ; denying 111 Motion for Extension of Time; denying 112 Motion for Discovery; denying 115 Motion for Hearing; denying 124 Motio n ; denying 127 Motion to Strike ; denying as moot 128 Motion to Withdraw ; denying as moot 151 Motion for Leave to File; denying 156 Motion ; granting 15 Motion to Amend/Correct; denying 160 Motion to Change Venue; denying 161 Motion ; denying 162 Motion to Compel; denying 163 Motion to Strike ; denying 23 Motion to Appoint Counsel. Signed by Magistrate Judge Brian K. Epps on 3/8/18. (wwp)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
COUNTY OF CHATHAM, et al., )
REPORT AND RECOMMENDATION
Before the Court are numerous motions. While several of those
motions were pending, plaintiff Anthony Oliver notified this Court of his
request to the United States Court of Appeals for the Eleventh Circuit
for a Writ of Mandamus. Doc. 88.1 The Court of Appeals denied his
motion as frivolous. Doc. 146. The delay in disposing of these motions is
the result of the unusual volume and frequency of filings in this case.
Because of the extent and complexity of the factual allegations and
procedural history, a detailed recitation of both is warranted.
Although styled as a “notice” this filing was marked by the Clerk as a motion. See
doc. 88. Since Oliver does not request any relief from this Court and the Court of
Appeals has denied his mandamus request, the Clerk is DIRECTED to terminate
The following facts are based on allegations in Oliver’s complaint
and other filings, which at this stage, the Court accepts as true. Oliver
has sued Chatham and Effingham Counties, their respective sheriffs, an
Effingham County deputy and several other law enforcement officers,
contending he was subjected to excessive force, his free-speech rights
were violated, and he was denied appropriate medical care. See doc. 1.
The alleged violations originate in Oliver’s arrest in January 2017. Id. at
Oliver’s vehicle was stopped by the side of a highway when it was
struck from behind by a black SUV. Doc. 1 at 5-6. Oliver exited his
vehicle and approached the SUV. As he approached, the driver drew a
firearm and pointed it at him. He fled to his own vehicle and called 911
as he drove away “at low speed.” Id. The 911 operator informed him
that the vehicle following him was a deputy sheriff, and he arrived at a
roadblock formed by four police vehicles and “spikes.” Id. He stopped
his vehicle, “activated a TranScend body camera system inside” it, and
After “several minutes” the black SUV struck
Oliver’s vehicle again. Id.
The deputy driving the black SUV, alleged to be defendant
Franklin Rollins, Jr., directed Oliver to exit the car. Doc. 1 at 7. Oliver
complied, and Rollins, otherwise unprovoked, “kicked [him] in the left
side of his face breaking two of his teeth and causing a large abrasion to
He was then “jumped on by 8 to 10 various law
enforcement officers who began kicking and striking [him] with fists and
a Billy [sic] club while [he] was handcuffed.” Id. Several other officers
observed this treatment, but did nothing to intervene on his behalf. Id.
Oliver began to request medical attention for his injuries, but “due to
actions, policies and procedures, by and through the elected Sheriff,
Defendant Jimmie [sic] McDuffie,” he received no medical attention. Id.
at 8. He was taken to “Chatham Jail” where medical staff examined him
and “instructed the jail staff to take [him] to a nearby hospital.” Id.
Despite that directive and his injuries, and after the personal
involvement of defendant Sheriff Wilcher, he was “booked” into the jail.
Id. at 8-9. Later he was taken to the hospital where tests revealed he
had “sustained injury to his spine and doctors discovered [his] back was
fractured.” Id. at 10.
Oliver seeks compensatory and punitive damages, an injunction
against future wrongful conduct, a court-ordered FBI investigation, a
grand jury indictment, and additional training for Chatham and
Effingham County employees concerning the proper responses to medical
conditions of arrestees. Id. at 13-14.
Chatham County, Sheriff Wilcher, and Deputy Rollins answered
See doc. 10 (Chatham County); doc. 11 (Sheriff
Wilcher); doc. 12 (Franklin Rollins, Jr.). After their answers were filed,
Oliver, purporting to act pro se, moved to amend his Complaint and to
“terminate” his attorney, who had entered an appearance after Oliver
filed is complaint pro se.
Doc. 14 (seeking “an immediate order
terminating [his attorney]); doc. 15. At the same time, he moved “ex
parte for a Temporary Restraining Order to enjoin Defendants from
further spoliating evidence.” Doc. 16. Several days later, his attorney
moved to withdraw from the case. See doc. 17. The Court granted the
withdrawal, noting the other two motions were null when filed given the
prohibition on represented parties filing motions pro se, but would be
considered pending defendants’ responses. Doc. 19.
Before any responses to Oliver’s motions were filed, Effingham
County and Sheriff McDuffie moved to dismiss his Complaint and for a
stay pending resolution of that motion. Docs. 20 & 21. While those
motions were pending, Chatham County and Sheriff Wilcher filed
motions to dismiss.
Docs. 28 & 29.
Oliver then filed a motion to
disqualify counsel for Chatham County and Sheriff Wilcher. Doc. 31.
After several other filings, Chatham County and Sheriff Wilcher moved
for an “order declaring plaintiff Anthony Oliver to be a vexations
litigant, and preventing him from filing new litigation without leave of
court and without posting security.” Doc. 41.
While these motions were pending, Oliver filed further motions
purporting to amend his claims. See doc. 50 at 2 (“[p]ursuant to Rule
41(a)(1) of the Federal Rules of Civil Procedure, the Plaintiff hereby
dismissed Defendant Jimmie [sic] McDuffie in his individual capacity
with his official capacity to stand whereas Plaintiff seeks only injunctive
relief.”); doc. 51 (“Pursuant to Rule 41(a)(1) of the Federal Rules of Civil
Procedure, the Plaintiff hereby dismisses the Defendant County of
Effingham dismissed without prejudice.”); doc. 52 (withdrawing his
Motion to Strike and Motion for Sanctions).
He then renewed his
motions to disqualify Chatham County and Sheriff Wilcher’s counsels
and for sanctions. Doc. 63 & 64. He also moved to strike Chatham
County and Wilcher’s Motions to Dismiss. Doc. 67.
Before any defendant responded to any of those motions, defendant
Franklin Rollins moved to dismiss, contending for the first time that
“[a]t the time of the events giving rise to . . . Oliver’s complaint, [he]
served as a Special Deputy United States Marshal.” Doc. 71. The United
States Attorney, appearing on Rollins’ behalf, argued Oliver was
obligated to serve the United States. Id. at 1. Because Oliver had never
properly served him, Rollins was entitled to dismissal without prejudice.
Before responding to that motion, Oliver again “noticed” the
dismissal of his claims against Chatham County. Doc. 76.
Rollins moved to strike the answer filed on his behalf by Chatham
representation” from Chatham County with respect to several claims
Oliver asserted, but that others were “properly defended by the Chatham
County Attorney.” Doc. 77 at 1. “To avoid prejudice to [Special Deputy
United States Marshal] Rollins’ individual interests,” he and the
Chatham County Attorney moved to strike the answers. Id. Oliver filed
another motion for sanctions, based on alleged misrepresentation by the
Chatham County attorneys that they represented Rollins, and responded
in opposition to Rollins’ motion to dismiss. Doc. 75 at 7 (noting that
“[i]n numerous pleadings, defense attorneys Jonathan Hart, Jennifer
Burns, and Bradford Patrick all claim to be representing Deputy
Rollins,” and arguing that those representations constituted “fraud upon
the United States District Court”); doc. 78 (opposition to Rollins motion
On November 8, 2017, Rollins filed his reply in support of his
On November 14, Oliver filed a further
response, in the form of a declaration describing what he contends were
medical consequences of Rollins’ tortious conduct; he also declared that
he had “corrected” the service defects identified by Rollins, by sending a
Summons and a copy of the Complaint to “United States Attorney Jeff
Sessions.” Doc. 89 at 3. He reiterated his contention that counsel for
Chatham County and Sheriff Wilcher “misled the court” that they
represented Rollins. Doc. 90.
Based upon a certified mail receipt submitted with Oliver’s
response to his motion to dismiss, Rollins concedes Oliver had perfected
service and withdrew his motion. Doc. 95 at 1. Although he conceded
effective service, Rollins now moved to dismiss Oliver’s Complaint as a
sanction for Oliver’s misrepresentation, in his response, that the United
States Attorney had failed to serve him with a copy of a filed document.
Doc. 96. Oliver requested leave to submit a Second Amended Complaint,
to add several defendants, allege additional violations of his rights which
occurred after he submitted his First Amended Complaint and to recast
several of his claims under 28 U.S.C. § 1983 as claims pursuant to Bivins
v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.
388 (1971). Doc. 97. He has also responded in opposition to Rollins’
sanctions motion, and moves for sanctions of his own and to strike the
offending filings. Docs 99 & 102. Oliver then submitted another volley
of motions --albeit apparent refilings -- on December 11.
(renewal of motion for PACER access); doc. 108 (renewal of motion to
Oliver filed a “First Amended Complaint” on December 7, 2017.
Doc. 103. He then filed a motion to expedite a hearing on his motion for
sanctions against Chatham County Attorneys, introducing complicated
factual allegations concerning hearings in other cases. See doc. 111 at 2
(alleging that Oliver has “sent both attorneys subpoena’s in [his] traffic
misdemeanour case,” and alleging malfeasance during “the hearing on
the second writ of haebus [sic] corpus”). He also requested expedited
discovery. Doc. 112.
Effingham County and Sheriff McDuffie moved to dismiss the
purported “First Amended Complaint.” Doc. 117. Oliver then filed a
flurry of documents “noticing” his dismissal of pending claims, with and
without prejudice, without specifying which version of the Complaint he
now believed operative. See doc. 121 (dismissal as to Sheriff McDuffie, in
his individual capacity); doc. 122 (dismissal of Effingham County); doc.
123(dismissal of Chatham County).
He then moved to withdraw his
motions to disqualify counsel, for sanctions, to obtain a PACER account,
and several other motions. Doc. 128.
Several more responses and replies followed. Docs. 129 (Effingham
County and Sheriff McDuffie’s response to doc. 124), doc. 130 (Oliver’s
reply to doc. 129), doc. 131 (Oliver’s response to defendant Rollins’
motions, including for sanctions and a protective order). Oliver then
“noticed” the dismissal of his official capacity claims against Sheriff
McDuffie. Doc. 132. Another volley of responses and replies followed.
See docs. 138, 139, 140, 142, & 143. Oliver also purported to “withdraw”
his dismissal of Sheriff Wilcher, although that dismissal purported to be
Compare doc. 118 (dismissal) with doc. 141
Most recently, defendant Rollins filed a partial motion to dismiss.
Doc. 144. Oliver filed his response on January 22, 2018, doc. 145, and
defendant replied on January 29, 2018, doc. 147. On February 5, 2018,
Oliver requested leave to file a sur-reply; a 15 page motion which
attached 54 pages of “exhibits”. Doc. 151. Finally, he has filed another
“notice” voluntarily dismissing his claims against Sheriff Wilcher, doc.
165, as well as several more motions.
Doc. 160 (Motion to Transfer
Venue); doc. 161 (Motion for a Status Conference); doc. 162 (Motion to
Compel Rule 26(f) Conference); doc. 163 (Motion to Strike Exhibits).
As the procedural history reflects, many of the motions filed in this
case have been withdrawn and refiled. Withdrawn or not, the Court
discusses the merits of the motions below. By discussing the merits, the
Court expects that, absent a relevant change in circumstance, no further
versions of these motions will be filed. His motions to withdraw those
motions are, therefore, DENIED as moot. Doc. 87; doc. 128.
A. Preliminary Motions
Several pending motions can be disposed with dispatch. First, the
Court should deny Oliver’s motion for a Temporary Restraining Order
(doc. 16) prohibiting defendants from spoliating evidence because
Defendants and their counsel have an independent obligation to preserve
evidence. See, e.g., In re Delta/AirTran Baggage Fee Antitrust Litigation,
770 F. Supp. 2d 1299, 1307 (N.D. Ga. 2011) (explaining duty to preserve
evidence is triggered “when litigation is reasonably anticipated.”).
Further a TRO is an extraordinary remedy that should not be granted
unless the movant clearly establishes entitlement. See Kate Aspen, Inc.
v. Fashioncraft-Excello, Inc., 370 F. Supp. 2d 1333, 1336 (N.D. Ga. 2005)
(citing Four Seasons Hotels & Resorts, B.V. v. Consorcio Barr, S.A., 320
F.3d 1205, 1210 (11th Cir. 2003)). If, after discovery, Oliver contends
that significant evidence has been altered or destroyed, various sanctions
are available. See Daniels v. United States, 86 F. Supp. 3d 1375, 1380
(S.D. Ga. 2015) (cite omitted) (if a party proves spoliation “the court may
sanction that party’s spoliation by dismissing the case, excluding expert
testimony based on the unpreserved evidence, or issuing a jury
instruction on spoliation of evidence which raises a presumption against
Accordingly, Oliver’s request for a TRO should be
DENIED. Doc. 16.
Oliver’s request for appointed counsel is also DENIED. Doc. 23;
doc. 108. “Although a court may, pursuant to 28 U.S.C. § 1915(e)(1),
appoint counsel for an indigent plaintiff, it has broad discretion in
making this decision, and should appoint counsel only in exceptional
circumstances.” Wright v. Langford, 562 F. App’x 796, 777 (11th Cir.
Appointment of counsel in a civil case is a “privilege that is
justified only be exceptional circumstances, such as where the facts and
legal issues are so novel or complex as to require the assistance of a
trained practitioner.” Fowler v. Jones, 899 F.2d 1088, 1096 (11th Cir.
1990) (citations omtted). Pretermitting whether Oliver is indigent (he
retained counsel earlier in this case after all), he has not established the
issues in this case are so complex counsel should be appointed.
Oliver has also requested leave to file a surreply to Defendant
Rollins’ most recent Motion to Dismiss.
In this Court,
“‘[p]arties may file as many reply briefs as they like . . . .’” Lee-Lewis v.
Kerry, 2016 WL 6647937 at * 4 (S.D. Ga. Nov. 8, 2016) (quoting Brown v.
Chertoff, 2008 WL 5190-638 at * 2 (S.D. Ga. Dec. 10, 2008)). The Court’s
Local Rules merely require that a party provide timely notice of his
intent to reply. See S.D. Ga. Loc. Civ. R. 7.6 (authorizing reply briefs but
imposing notice requirements and time limits). Such notice, however,
does not constrain the Court to withhold decision for filing of responsive
briefs beyond the first. See Brown v. Chertoff, 2008 WL 5190638 at * 1 n.
2 (S.D. Ga. Dec. 10, 2008) (reminding that “[o]nce the initial round of
briefs have been filed, subsequent replies run the risk of ‘sudden death.’
That is, the Court is free to issue its decision at any time.”). Since the
Court’s leave is not required to allow Oliver to file any responsive
briefing he believes is necessary, his request is DENIED as moot. Doc.
Finally, given the length that these issues have been pending and
the extent of the parties’ briefing, all pending requests for scheduling
modifications are DENIED. Doc. 46; doc. 53; doc. 60; doc. 61; doc. 111;
B. Oliver’s Motions for access to the Court’s electronic
Oliver requested leave to submit his filings electronically through
the Court’s CM/ECF system. Doc. 7. The Court denied that request.
Doc. 8. He now moves the Court to reconsider that denial. Doc. 36. He
identifies four novel issues in his motion: (1) that his original request
should have been ruled on by the district judge; (2) that defendants
“have outright refused to provide [him] with copies of any and
[(presumably) all] documents that they have filed in this case”; (3) that
he “is currently unemployed and . . . supporting four children”; and (4)
he plans to move out of State. Id. at 3. None of those reasons undermine
the Court’s conclusion that he should not be allowed CM/ECF access.
His Motion for Reconsideration is, therefore, DENIED. Doc. 36.
In a similar vein, Oliver seeks an “order form the Court providing
[him with] . . . a pacer account.” Doc. 59 at 4. “PACER” is an acronym
which stands for “Public Access to Court Electronic Records.”
www.pacer.gov (emphasis added).
Oliver may register for a PACER
account as a member of the public; he does not need a court order.
Instructions for registration are available through the PACER website at
Oliver’s request also mentions the fees imposed to access records
through PACER, doc. 59 at 4-5, implying that, rather than merely
seeking an account, Oliver seeks to have the fees waived or paid for from
public funds. Even when a party is granted leave to pursue a complaint
in forma pauperis, the party is not entitled to public funding of their
litigation expenses. See Tabron v. Grace, 6 F.3d 147, 158-59 (3d Cir.
1993) (noting in 28 U.S.C. § 1915 “authorizes courts to commit federal
monies for payment of the necessary expenses in a civil suit brought by
an indigent litigant.”). Since Oliver is not proceeding in forma pauperis,
there is even less justification for public subsidy of his litigation
expenses. Accordingly his request for a PACER account is DENIED as
moot and his implicit request to avoid PACER fees is DENIED. Doc.
59; doc. 106.
C. Claims against Chatham County and Wilcher
Oliver is frustrated with what he contends is inappropriate conduct
by the attorneys representing the County and Sheriff Wilcher. See doc.
31 (Motion to Disqualify).
They, in turn, move to declare plaintiff a
vexatious litigant. Doc. 41.
Oliver has repeatedly informed the Court he wishes to voluntarily
dismiss his claims against the County and Sheriff Wilcher in his official
Doc. 76 (voluntary dismissal of claims against Chatham
County); doc. 105 (voluntary dismissal of claims against Sheriff Wilcher
in his official capacity); doc. 123. Although his “voluntary dismissal”
cites Fed. R. Civ. P. 41(a), that Rule only applies to actions, not parties.
See id. The status of Oliver’s claims against Sheriff Wilcher is further
complicated by his latest amendment, which as discussed below was filed
outside the time for amendment as a matter of course and without the
See doc. 103; Fed. R. Civ. P. 15(a).
amendment includes claims against Sheriff Wilcher “in his official and
individual capacity.” Doc. 103 at 2. Despite those claims, and on the
same day, Oliver filed a voluntary dismissal, purportedly pursuant to
Fed. R. Civ. P. 41(a)(1), of his claims against Sheriff Wilcher in his
official capacity, though maintaining the claims against him individually.
Doc. 105 at 2. He has since filed a notice of voluntary dismissal of his
remaining claims against Wilcher in his individual capacity. Doc. 118.
He later withdrew that notice of dismissal, despite stating he was
voluntarily dismissing “with prejudice.” Compare doc. 141 (withdrawal
of second voluntary dismissal), with doc. 118 (stating “the Plaintiff
hereby dismisses the Defendant John T. Wilcher in his individual
capacity with prejudice as to all claims, causes of actions, and parties.”
Then, he filed another notice of dismissal, again
Given the uncertainty created by the
whipsaw between asserting and withdrawing his claims, and the
opportunity Oliver will have (as discussed below) to amend his
Complaint, the Court should dismiss the current claims.
Neither defendant has indicated any objection to their dismissal
from this action.
Accordingly, Oliver’s request to voluntarily dismiss
them from this action should be GRANTED. Doc. 123. The remaining
motions related to the claims against the Chatham County and Sheriff
Wilcher should thus be DENIED as moot. Doc. 28; doc. 29; doc. 30;
doc. 31; doc. 40; doc. 41; doc. 63; doc. 67. The motions by attorneys Hart
and Burns to withdraw from their representation of Rollins and to
substitute Assistant United States Attorney Bradford Patrick are
GRANTED. Doc. 80; doc. 81.
D. Claims against Effingham County and McDuffie
Oliver has filed several documents purporting to voluntarily
dismiss his claims against Effingham County and Sheriff McDuffie, in
both his official and individual capacities. Doc. 121 (Notice of Dismissal
of claims against Sheriff McDuffie in his individual capacity, “without
prejudice”); doc. 122 (Notice of Dismissal of claims against Effingham
County, “with prejudice”); doc. 132 (Notice of Dismissal of claims against
Sheriff McDuffie in his official capacity, “without prejudice”). He has
subsequently reiterated his desire to withdraw his claims against Sheriff
McDuffie, in both his official and individual capacities, and against
Effingham County. See doc. 156 at 2 (referring to “[f]ormer” defendants
McDuffie and Effingham County). Defendants correctly point out that
he may not unilaterally dismiss those claims at this stage. See doc. 129
Nevertheless, they do not express any opposition to Oliver’s
request to withdraw his claims against them, and dismiss them from this
action. See generally doc. 129. Accordingly, the Court should GRANT
Oliver’s request to withdraw his claims and DISMISS Effingham
County and Sheriff McDuffie from this action. Doc. 121; doc. 122. All
related motions should be DENIED as moot. Doc. 20; doc. 21; doc. 117.
1. Oliver’s motions for sanctions against defense counsel
Whether Oliver’s claims against Chatham County and Sheriff
Wilcher are pursued or not, his claims for sanctions against their
attorneys remain before the Court. Oliver has made numerous, serious
allegations of misconduct, including that Attorney Hart engaged in “an
elaborate or attempt and scheme [sic] to extort $45.00,” related to an
“open records request” Oliver submitted to Chatham County, doc. 31 at
3; that attorneys Hart and Burns “lie, cheat, and steal to gain a tactical
advantage” in this case, doc. 63 at 12; and that Assistant United States
Attorney Patrick “impersonat[ed] a ‘special federal officer,’ prepar[ed] a
false affidavit for himself and Lisa McCarley,” and filed a frivolous
motion for sanctions against him. Doc. 99 at 4.
Given the complexity of the allegations, Oliver’s pro se status, and
the possibility his emotional investment in his case has lead him to
overstate counsels’ conduct, the Court will give him an opportunity to
clarify his allegations. Some of these allegations appear to implicate Fed.
R. Civ. P. Rule 11, without any indication Oliver has complied with its
procedural requirements. See, e.g., doc. 99 at 4; Fed. R. Civ. P. 11(c)(2)
(imposing procedural requirements on sanctions motions, including
motion “be made separately from any other motion,” and “be served
under Rule 5, but it must not be filed or presented to the court if the
challenged paper, claim, defense, contention, or denial is withdrawn or
appropriately corrected within 21 days after service . . . .”).
implicate various aspects of professional ethics. See, e.g., doc. 99 at 4
(alleging “fraud upon [the] Court, and seeking “[a]n Order disbarring the
US Attorney Bradford Patrick . . . .”). If he chooses to proceed, and once
he has clarified his allegations, the Court will consider them pursuant to
the procedure established by Local Rule 83.5.
Within 14 days from the date he receives a copy of this Order,
Oliver must supplement his motions for sanctions against attorneys
Hart, Burns, and Patrick.
He must separately list each instance of
allegedly sanctionable conduct. Counsel shall then have the opportunity
to avail themselves of Rule 11(c)’s safe-harbor provision, if applicable,
and 14 additional days from the expiration of the safe-harbor period to
oppose the motion. Oliver must also certify the accuracy of the facts
alleged, under penalty of perjury. Accordingly, he must insert above his
signature the following: “I declare under penalty of perjury under the
laws of the United States of America that the foregoing is true and
correct. Executed on (date).” 28 U.S.C. § 1746(1).
In that regard, Oliver is reminded that:
[L]ying under oath, either live or “on paper,” is illegal. See United
States v. Roberts, 308 F.3d 1147, 1155 (11th Cir. 2002) (defendant’s
falsely subscribing to statement in his habeas petition that he had
not previously filed a § 2255 motion was “material” for purposes of
perjury prosecution; statement fooled the clerk of the court into
accepting the “writ” for filing, and led the magistrate judge to
consider its merits until she discovered that the “writ” was a
successive § 2255 motion in disguise); 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 Irick
v. United States, 2009 WL 2992562 at * 2 (S.D. Ga. Sept. 17, 2009);
see also Colony Ins. Co. v. 9400 Abercorn, LLC, 866 F. Supp. 2d
1376, 1378 n. 2 (S.D. Ga. 2012).
Mingo v. United States, 2014 WL 4926278 at * 1 n. 3 (S.D. Ga. Oct. 1,
2014). Since he must supplement, his currently pending sanctions and
related motions should be DENIED as moot. Doc. 62, doc. 64, doc. 75,
2. Motions for sanctions against Oliver
Defendants have objected since early in this case to Oliver’s
conduct. See doc. 41 (Motion to declare plaintiff a vexatious litigant).
They allege he has “a longstanding history of filing frivolous complaints
and motions against governmental entities.” Id. at 3; see also doc. 79 at
3-6 (listing Oliver’s allegedly frivolous suits in other jurisdictions). More
recently, and more troublingly, he has allegedly approached defendant
Rollins and his wife in public, and engaged in surveillance and other
threatening conduct. See doc. 79 at 6-9. Rollins also seeks sanctions
against Oliver, including dismissal of this action, for falsely alleging that
the United States Attorney failed to serve him with court filings. See
doc. 96 at 2. The US Attorney contends that this allegation fits Oliver’s
pattern of “routinely accus[ing] opposing counsel of falsifying certificates
of service in litigation across the country.” Id.
The Court is well aware of Oliver’s extraordinary conduct in this
case. The Court is also willing to accept that Oliver may have engaged in
inappropriate conduct in other cases.
However, the US Attorney
concedes that, at least, Oliver’s excessive force claim is sufficient to
survive a motion to dismiss.
Doc. 144 at 1-2 (Rollins “concedes for
purposes of [his motion to dismiss] that Oliver adequately alleges an
excessive force claim.”). Even if Oliver’s conduct is extreme, the Court
cannot say that the conduct he has engaged in here, as opposed to
elsewhere, is sufficient to warrant a sanction of dismissal; especially
given his pro se status. See doc. 96 at 7-10 (noting that “[d]ismissal is an
extreme sanction . . . .”).
Rollins’ sanctions motion, therefore, is
DENIED. Doc. 96
Oliver should be under no illusion that the Court’s reticence to
impose an extreme sanction indicates approval of his conduct.
Court, as explained above, tolerates no misrepresentations. Further, the
fact that Oliver has felt compelled to withdraw so many of his motions
indicates, in itself, that many are frivolous.
Oliver’s hyperbole and
outrage have damaged his ability to pursue the justice he claims is the
object of his suit. If he continues to pursue his claims in this manner,
the Court will be forced to conclude that his object is not justice, but
There are more than enough meritorious claims that this
Court has no time for theatrics and no patience for frivolity.
The Court, therefore, imposes the following restrictions of any
motion Oliver files in this case:
1. The motion must include the following statement:
“I declare under penalty of perjury under the laws of the United
States of America that each fact asserted in the foregoing is true
and correct. Executed on (date).”;
2. Any allegation of misconduct by opposing counsel must include
specific facts: broad allegations of “fraud” or the like, which are
not supported by specific facts, will be regarded by the Court as
3. Oliver must promptly notify the Court if he asserts any claim of
misconduct against any counsel appearing in this case with any
third party, including any state bar association or the press.
That notice must include the specific factual basis for the
allegation, and be certified under penalty of perjury, as described
4. Any misconduct allegation must include a specific explanation of
the prejudice Oliver has suffered, or fears he will suffer, because
of it. Thus, assertions that he has not been served with a filing
must explain why the failure to receive a filing has prejudiced
If he fails to comply with any of these requirements, the Court will
presume he has wilfully disobeyed its Order and take appropriate
measures. Oliver is warned that dismissal of this action will be
the minimum sanction imposed.
The facts alleged in Rollins’ motion for a protective order, that
Oliver is approaching various potential defendants, witnesses, and their
families, outside of any recognized discovery process, are highly
Because there is no justification for approaching family
members of witnesses and parties, the Court recommends enjoining
Plaintiff from doing so regardless of whether he has, in fact, done so in
the past. Rollins’ motion, therefore, should be GRANTED, in part. Doc.
Oliver is advised, however, that the Federal Rules of Civil
Procedure provide the exclusive methods for conducting discovery. He is
DIRECTED to utilize those methods, and only those methods, from
this point forward.
He is further DIRECTED to communicate with
defendants only through their counsel. Further attempts to circumvent
the established discovery procedures will be construed as a wilful
violation of this Court’s Order, subjecting Oliver to sanctions, as
The motion for a hearing on Rollins’ motions for
protective order and sanctions is DENIED as moot. Doc. 115.
His recent Motion to Transfer Venue is, in effect, a sanctions
motion, since it alleges that transfer is warranted because of various
misconduct, is also DENIED. Doc. 160. He is free to renew his motion
to transfer, subject to the requirements imposed above.
F. Motions to Amend
Oliver has requested the Court’s leave to amend his Complaint
several times, and subsequently withdrawn those requests. See doc. 15,
(Motion to Amend); doc. 103 (Amended Complaint); doc. 150 (withdrawal
of Motion to Amend).
Given his voluntary dismissal of several
defendants from this case, however, and the clarification of defendant
Rollins’ status, some amendment is appropriate. Accordingly, Oliver’s
request to amend his Complaint is GRANTED. Doc. 15.
Oliver is DIRECTED to file an Amended Complaint within 14
days from the date of this Report and Recommendation. He is reminded
that his Amended Complaint will supersede all previous versions, and,
therefore, must be complete in itself.
See, e.g., Malowney v. Fed.
Collection Deposit Grp., 193 F.3d 1342, 1345 n. 1 (11th Cir. 1999) (“An
amended complaint supersedes an original complaint”); Varnes v. Local
91, Glass Bottle Blowers Ass’n of U.S. & Canada, 674 F.2d 1365, 1370 n.
6 (11th Cir. 1982) (“As a general rule, an amended complaint supersedes
and replaces the original complaint unless the amendment specifically
refers to or adopts the earlier pleading.”). Defendants shall respond to
the amendment as required by Fed. R. Civ. P. 15. Motions to strike
previously filed versions of the pleadings are, thus, DENIED as moot.
Doc. 77; doc. 127.
Since the Court is permitting Oliver to amend his Complaint, the
Court should DENY without prejudice the motions to dismiss
currently pending. Doc. 71; doc. 96 (in part); doc. 144. Motions related
to the dismissal motions are DENIED as moot. Doc. 95; doc. 163. If
any party named in the Amended Complaint believes that previously
asserted grounds for dismissal apply, they are free to reassert them. His
motion for service of a previous version of the Complaint is DENIED.
There are various discovery motions pending before the Court,
including motions to stay discovery.
The Court DENIES Oliver’s
discovery motions, pending his amendment of his Complaint. Doc. 124;
doc. 156; doc. 161; doc. 162. Discovery in this case shall be STAYED
until the period for response to the Amended Complaint, provided under
Fed. R. Civ. P. 15(a)(3), has passed. The Court will consider motions to
extend the stay prior to that deadline.
In summary, the pending motions in this case are resolved as
The following motions are GRANTED: Doc. 15; doc. 80; doc.
The following motions are DENIED: Doc. 23; doc. 36; doc.
46; doc. 53; doc. 59; doc. 60; doc. 61; doc. 77; doc. 87; doc. 95;
doc. 96 (in part); doc. 106; doc. 107; doc. 108; doc. 111; doc.
112; doc. 115; doc. 124; doc. 127; doc. 128; doc. 151; doc. 156;
doc. 160; doc. 161; doc. 162; doc. 163;
The Court RECOMMENDS that the following motions be
GRANTED: Doc. 79 (in part); doc. 121; doc. 122; doc. 123;
The Court RECOMMENDS that the following motions be
DENIED: Doc. 16; doc. 20; doc. 21; doc. 28; doc. 29; doc. 30;
doc. 31; doc. 40; doc. 41; doc. 62; doc. 63; doc. 64; doc. 67; doc.
71; doc. 75; doc. 96 (in part); doc. 102; doc. 117; doc. 144.
As to those portions of the above making recommendations to
the district judge, this Report and Recommendation (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
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
The district judge will review the magistrate judge’s
§ 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. United States, 612 F. App’x 542, 545
(11th Cir. 2015).
RECOMMENDED, this 8th day of March, 2018, at Augusta,
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