Oliver v. County of Effingham et al

Filing 58

ORDER staying 1 Complaint filed by Anthony Oliver. REPORT AND RECOMMENDATIONS denying as moot 50 MOTION to Withdraw, denying as moot 47 Joint MOTION to Dismiss, denying 38 MOTION to Dismiss, denying 37 MOTION to Dismiss, denying 12 MOTION to Dismiss Plaintiff's First Amended Complaint, denying 49 MOTION to Strike, denying 14 Supplemental MOTION to Dismiss pursuant to Rule 12b6, denying 44 MOTION to Dismiss Complaint, denying as moot 57 MO TION for Extension of Time, denying 16 MOTION to Dismiss. The Court RECOMMENDS that the conditions imposed on Oliver in CV417-101 be imposed in this case as well. Those conditions are: (1) In addition to paying the Courts filing fee, Oliver mus t post a $1,000 contempt bond with the Clerk of Court. This bond will be held by the Clerk of Court and, if Plaintiff has conducted the affairs in his case appropriately, the bond will be returned to him at its conclusion; (2) Plaintiff must fil e into this case, and attach to any Complaint he files, a signed affidavit swearing that he has read Federal Rule of Civil Procedure 11 and will abide by its provisions. Within 30 days, Oliver must file an Amended Complaint stating any claim he still wishes to pursue.(Objections to R&R due by 2/12/2019). Signed by Magistrate Judge James E. Graham on 1/29/19. (wwp) Modified on 1/29/2019 (wwp).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
ANTHONY OLIVER
Plaintiff,
v.
COUNTY OF EFFINGHAM, et al.,
Defendants.

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CV418-120

ORDER AND REPORT AND RECOMMENDATION
This case is one of several that pro se plaintiff Anthony Oliver has
filed in this Court. One recent case was dismissed with prejudice because
of Oliver’s persistent failure to abide by the Court’s rules, procedures,
and orders. See Oliver v. County of Chatham, et al., CV417-101, doc. 189
(Report and Recommendation); doc. 220 (Order adopting recommended
filing conditions).

Several of the present defendants have moved to

dismiss this case because Oliver has not complied with the conditions
imposed when that case was dismissed. See doc. 12 at 7-8. At the time
that defendants made that request, Oliver’s appeal of the Order
dismissing that case and imposing the special filing conditions was
pending.

See CV417-101, doc. 222 (Notice of Appeal).

Recently, the

Court of Appeals dismissed that appeal for want of prosecution. CV417-

101, doc. 231 (Mandate).

Given the totality of Oliver’s conduct, the

Court should require that he comply with the previously imposed
conditions in this case.1
I.

Oliver’s Litigation Conduct
In his recently dismissed case, Oliver sought and received an

extension of time to file his objections to the Court’s recommendation of
dismissal with prejudice and restrictions to be imposed on any future
cases he filed.

CV417-101, doc. 203.

In seeking that extension, he

represented to the Court, under penalty of perjury, that such an
extension was warranted, among other reasons, because he intended to
“fil[e] a Chapter 7 petition with the United States District Court,
Southern District Bankruptcy Court.” Id. at 2. He did not disclose his
intention to initiate any other proceeding. See id.
Based on those representations, the Court granted him an
extension to file his objections. CV417-101, doc. 204. Two weeks after he
was granted the extension, he filed a discovery motion, CV417-101, doc.
206, and another document purporting to alter his previously filed
The undersigned is entering a companion Order and Report and Recommendation
in CV418-100. There, as here, the Court directs Oliver to explain the discrepancies in
his statements concerning his financial situation and recommends imposing
conditions on his prosecution of that case.
1

2

“voluntary dismissal,” CV417-101, doc. 208. Almost three more weeks
passed before Oliver filed his objection, a day after his extended deadline.
See CV417-101; doc. 211.
Oliver’s difficulty in meeting his extended deadline is explicable,
however.

He used the time to prepare and file a second complaint

against the City of Pooler, seeking recovery for alleged civil rights
violations under 42 U.S.C. § 1983. See Oliver v. City of Pooler, et al.,
CV418-100 (S.D. Ga. May 1, 2018).

Despite his protestation in his

extension request that he was on the verge of bankruptcy, he paid the
Court’s full $400 filing fee. See CV418-100, doc. 1-2 (receipt). In June,
he paid a private process server $104.50 to serve his Complaint upon
Governor Nathan Deal in that case. See id., doc. 37 at 14. He also filed
this action, alleging civil rights violations by various individuals in
Effingham County, Georgia, (including, apparently, every sitting judge in
the county).

See doc. 1 (S.D. Ga. May 23, 2018) (Complaint).

Once

again, he paid the full filing fee. See id. at 30-31 (receipt). In August, he
filed another § 1983 action in Chatham County Superior Court, which

3

defendants removed to this Court. See Oliver v. Massey, et al., CV418213, doc. 1 (S.D. Ga. Sept. 7, 2018).2
Oliver

filed

another

civil

action,

alleging

employment

discrimination, in which he sought leave to proceed in forma pauperis
(IFP). See Oliver v. Hayley Sheth Investments, L.L.C., CV417-152, doc. 1
(Complaint) (S.D. Ga. Aug. 14, 2017); doc. 2 (Motion for Leave to Proceed
in forma pauperis) (S.D. Ga. Aug. 14, 2017). In his IFP application, he
stated, again under penalty of perjury, that his average income for the
preceding twelve months was $0.00, he had $46.00 in his checking
account, and did not expect any “major changes to [his] monthly income
. . . during the next 12 months.” CV417-152, doc. 2 at 1-2, 5. That is,
perhaps, consistent with his recent protestation that he intended to file

It is not clear to the Court whether he paid a fee to file that case, but the notice of
removal does not include any indication that he brought it in forma pauperis.
2

In addition to the cases he filed here, in September 2018, he filed a suit against Lyft,
Inc., in the Northern District of California. Again, he paid the $400 filing fee. See
Oliver v. Lyft, Inc., et al., CV418-270, doc. 1 (S.D. Ga. Sept. 7, 2018) (Complaint). The
case was subsequently transferred to this Court. Doc. 35 (Transfer Order). Shortly
after the transfer, Oliver filed another Complaint against Lyft, Inc., in the Northern
District of California. See Oliver v. Lyft, Inc., CV318-7166, doc. 1 (N.D. Cal. Nov. 26,
2018). Lyft has moved to transfer the case to this Court, alleging that Oliver’s filing
it in the Northern District is “a naked attempt to evade [this Court’s] prior vexatious
litigant order.” Id., doc. 27 (N.D. Cal. Jan, 14, 2019). Oliver opposes that motion.
CV318-7166, doc. 29 (N.D. Cal. Jan. 14, 2019).
4

for bankruptcy protection. It is, however, completely inconsistent with
his payment of more than $800.00 in court fees and litigation expenses.
Several of Oliver’s filings also demonstrate that his rhetorical
impulses continue to overcome his discretion. See CV417-101; doc. 166
at 23 (admonishing Oliver that his “hyperbole and outrage have damaged
his ability to pursue the justice he claims is the object of his suit.”). The
present

Complaint

includes

numerous

inflammatory

accusations,

unaccompanied by factual support. See doc. 1 at 6, ¶ 21 (referring to
Effingham

County

Victim

Assistance

Program

as

a

“criminal

organization”), ¶ 22 (conclusorily alleging a conspiracy between
defendants Field, Oliver’s former domestic partner, and Wadrose,
director of the Victim Assistance Program, to file false police reports),
¶ 23 (alleging that defendant Field was “able to sucker WADROSE into
believing her story to reap the financial benefits,” and “got the [Victim’s
Assistance Program] and WADROSE to pay for her known high profile
corrupt attorney,” defendant Rafter), 9, ¶ 34 (alleging “Defendants . . .
have formed a conspiracy to protect Sheriff McDuffie”); 10, ¶ 42
(suggesting that defendant Field interfered in a state court action to
“legitimate [Oliver’s] children,” by involving “her puppet WADROSE”);
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11, ¶ 47 (stating his intent to “prove to this Court that FIELD is nothing
more than a pathological liar”), 14, ¶ 60 (“Irrespective of any credible
evidence, and because Judge PEED, WADROSE, and RAFTER are
friends with Sheriff MCDUFFIE, each of the said Defendants, including
PEED were confident that they finally got Plaintiff for anything and
something.”), 16, ¶ 68 (“Acting under the color of state law, FIELD,
RAFTER, WADROSE, and the County of Effingham violated Plaintiff’s
well-established rights that would prevent Plaintiff from being
prosecuted twice for the same offense,” apparently by making allegedly
false reports to law enforcement); 18, ¶ 74 (“Despite conclusive proof
that Plaintiff did not stalk his ex-girlfriend, that doesn’t matter because
the only thing that important in the eyes of each of the Defendants, and
Judicial Defendants, is that Plaintiff has filed a lawsuit against Sheriff
MCDUFFIE for civil rights violations . . . [s]o, each of the Defendants
decided to work together to ensure those lawsuits would go away by
framing Plaintiff for multiple crimes that never occurred”); 19, ¶ 78
(“Each of these Defendants utilize inculpatory evidence that was corrupt,
and fabricated to arrest, detain and try to convict Mr. Oliver for a crime

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that never was committed.”).

It appears, therefore, that the Court’s

previous admonitions have had no effect.
This case also reflects Oliver’s habit of filing partial dismissals,
although here he has styled most “motions” rather than “notices.” See
doc. 16 (requesting dismissal of claims “without prejudice” against
defendants Woodrum, Muldrew, Thompson, Peed, Sexton, Lewis, and
Effingham County); doc. 38 (requesting dismissal “with prejudice” of
claims against defendant LeValley); see also doc. 47 (defendant Rafter’s
request, pursuant to a stipulation, that claims against his client be
dismissed), doc. 50 (Oliver’s unilateral “withdrawal” of the joint motion).
Given the “flurry” of motions, the Court stayed this case, pending the
Court’s decision on the pending dispositive motions.

Doc. 52 at 2-3.

Despite the stay, Oliver filed dismissal, again a “notice,” of his claims
against defendants Effingham County, Deal, Keenan, Lewis, Muldrew,
Peed, Rafter, Sexton, The State Bar of Georgia, Thompson, Wadrose, and
Woodrum, “without prejudice.”

Doc. 55.

The now-familiar pattern

repeats in his other cases. See CV418-100, doc. 27 (“motion” to dismiss
several defendants and offering to dismiss other defendants, “[i]f the
Court grants [his] . . . motion for limited discovery” against them);
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CV418-213, doc. 7 (“dismissing” claims against defendant Massey, “with
prejudice”).
His broader litigation record only reinforces the conclusion that
Oliver is, to say the least, irresponsible. An exhaustive examination of
that litigation, in jurisdictions across the country, would be burdensome.
However, in September 2018, the United States District Court for the
Central District of California declared Oliver a vexatious litigant. See
Oliver v. Luner, CV218-2562, doc. 99 (C.D. Cal. Sept. 26, 2018).3 The
court noted that “[i]n addition to his numerous actions in state court,
[Oliver] has filed at least thirty lawsuits in federal court.” Id. at 4. It
lamented that it “searched in vain for a case in federal court resulting in
a verdict on the merits in [Oliver’s] favor,” but found, instead, warnings
to restrain his conduct “on multiple occasions by multiple judges in
multiple districts.” Id. at 7-8. Based on that conduct, the court imposed,
what it recognized was “‘an extreme remedy that should rarely be

Although the Court concedes the possibility that other individuals named “Anthony
Oliver” may file civil cases, the Central District was sufficiently assured of plaintiff’s
identity that it cited his previously filed cases in its Order. See CV218-2562, doc. 99
at 5. His filings in that case also list his Savannah, Georgia address. See, e.g.,
CV218-2562, doc. 95 (brief filed by Oliver listing a mailing address in its header).
That address corresponds to the address listed as plaintiff’s on his Civil Cover Sheet
in this case. See doc. 1 at 28.
3

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used,’” id. at 2 (quoting Molski v. Evergreen Dynasty Corp., 500 F.3d
1047, 1057 (9th Cir. 2007)), and required Oliver to “obtain leave of court
before filing any additional lawsuits.” Id. at 9. The Central District’s
Order makes the burden that Oliver has imposed on the court system
clear.
II.

Conditions on further litigation

Oliver’s ongoing conduct in his various cases seems explicable only by
culpable carelessness or a deliberate attempt to disrupt the efficient
disposition of his claims. In either case, it is the sort of behavior that
demands response. Accordingly, the Court RECOMMENDS that the
conditions imposed on Oliver in CV417-101 be imposed in this case as
well. Those conditions are:
(1)

In addition to paying the Court’ s filing fee, Oliver must post a
$1,000 contempt bond with the Clerk of Court. This bond will
be held by the Clerk of Court and, if Plaintiff has conducted the
affairs in his case appropriately, the bond will be returned to
him at its conclusion;

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(2)

Plaintiff must file into this case, and attach to any Complaint he
files, a signed affidavit swearing that he has read Federal Rule of
Civil Procedure 11 and will abide by its provisions.

CV417-101, doc. 220 at 2. Oliver is reminded that he remains subject to
that Order’s requirement that he must attach to any subsequent
Complaint he files both a photocopy of the Report and Recommendation,
recommending dismissal of CV417-101, and the Order dismissing that
case. See id. at 2.
Further, he is DIRECTED to:
(3)

file a response to this Order and Report and Recommendation
within 14 days and explain the apparent inconsistencies in his
sworn statements concerning his financial condition; and

(4)

in any further filing in this case, including the response required
above, 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).”
Finally, given the ambiguous status of Oliver’s claims against

various defendants resulting from his “dismissals,” he must amend his
Complaint.

Within 30 days, Oliver must file an Amended Complaint
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stating any claim he still wishes to pursue. Any defendant named in that
Amended Complaint, who has already been served, shall have 21 days to
respond. Any new defendant added in the Amended Complaint must be
served with process, according to the requirements of the Federal Rules
of Civil Procedure.
Given

the

provisions

of

this

Order

and

Report

and

Recommendation, motions to dismiss the original Complaint, both
plaintiff’s and defendants’, are moot. Accordingly, they, and the motions
related to them, should be DENIED. Docs. 12, 14, 16, 37, 38, 44 & 49.
Similarly, the “joint” motion to dismiss and the related motions, docs. 47
& 50, should be DENIED as moot. The case shall remain STAYED
pending the District Judge’s action on the above recommendations and
Oliver’s compliance with the ordered terms. Oliver’s motion to extend
the time to seek a default judgment against Defendant Field should be
DENIED as moot.4 Doc. 57.
This Report and Recommendation (R&R) is submitted to the
district judge assigned to this action, pursuant to 28 U.S.C.
The Clerk’s entry of default against Field shall remain on the docket. Doc. 36. If
Oliver complies with the provisions of this Order and any further restrictions
imposed by the District Judge, as recommended above, he is free to refile any motion
he deems appropriate.
4

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§ 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.
captioned

“Objections

to

Magistrate

The document should be
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
recommendation 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

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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 ORDERED AND REPORTED AND RECOMMENDED,
this 29th day of January, 2019.

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