Simon et al v. Davis
ORDER directing Simon to submit the completed Prisoner Trust Fund Account Statement Form, a written explanation addressing his failure to disclose his litigation history and consolidation of these cases, and an Amended 1 Complaint by no later than November 27, 2023. (Compliance due by 11/27/2023; Amended Pleadings due by 11/27/2023.) Signed by Magistrate Judge Christopher L. Ray on 11/13/2023. (Attachments: # 1 PLRA Forms, # 2 1983 Complaint Form.) (jlh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
NICHO ANDROPOLIS SIMON
and ADRIAN LEANDREW
NICHO A. SIMON,
Pro se plaintiff Nicho Simon has filed the two above-captioned
cases, apparently related to the same events, as discussed more fully
below. In the earlier-filed case, he purported to assert claims on both his
own behalf and on behalf of another inmate, who did not sign the
Complaint. See CV423-302, doc. 4 at 2-3 (S.D. Ga. Oct. 16, 2023). The
Court, therefore, recommended that the nominal co-plaintiff be
That recommendation remains pending before the
District Judge. Id. Simon also moved to pursue that case in forma
pauperis, CV423-302, doc. 2 (S.D. Ga. Oct. 11, 2023). The Court granted
that request and directed him to return several forms. CV423-302, doc.
4 at 3-7. He returned the forms, see CV423-302, docs. 5 & 6 (S.D. Ga.
Nov. 6, 2023), but the second form is blank and unsigned, doc. 6. On the
same day he returned the forms, Simon also filed a second Complaint.
See CV423-322, doc. 1 (S.D. Ga. Nov. 6, 2023). He also moved to pursue
that Complaint in forma pauperis. CV423-322, doc. 2 (S.D. Ga. Nov. 6,
Although his request to proceed in forma pauperis might be
granted, the substance of the two complaints requires clarification.
Simon’s first-filed Complaint alleges that Defendant Brian Davis,
another inmate, robbed him and his “significant other” of their breakfast
and threatened them on “September 9,” apparently 2023. See CV423302, doc. 1 at 5. On September 10, the same inmate attempted to stab
him and punched him.
The Complaint was signature-filed1 on
“Under the ‘prison mailbox rule,’ a pro se prisoner’s court filing is deemed filed on
the date it is delivered to prison authorities for mailing.” Williams v. McNeil, 557
F.3d 1287, 1290 n. 2 (11th Cir. 2009). “Absent evidence to the contrary . . ., [courts]
September 14, 2023. Id. at 6. The Complaint expressly states that Simon
has not filed any other lawsuits in federal court during his incarceration.
See id. at 1-2. Simon’s second-filed Complaint alleges that on “September
9,” an unidentified “defendant that is a known, violent gang member,”
robbed him and his “significant other” of their breakfasts. CV423-322,
doc. 1 at 5. On September 10, the same defendant punched him and tried
to stab him. Id. Although that Complaint was not received by the Clerk
until November 6, 2023, it was signature-filed on September 11, 2023.
Id. at 1, 6. Like the first-filed Complaint, the second-filed Complaint
expressly states that Simon has not filed any other lawsuits in federal
court during his incarceration. Id. at 1-2.
Given the two Complaints, Simon appears to have filed redundant
pleadings, one of which misrepresents his litigation history. Regardless
of how the Court resolves the convoluted chronology of the two
complaints, one or the other’s representation that no other complaints
have been filed must be false.
Both Complaints were signed under
penalty of perjury. See CV423-302, doc. 1 at 6; CV423-322, doc. 1 at 6. A
will assume that [a prisoner’s filing] was delivered to prison authorities on the day
he signed it . . . .” Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001).
plaintiff’s misrepresentation of his litigation history warrants dismissal.
See Sears v. Haas, 509 F. App’x 935, 936 (11th Cir. 2013) (affirming
dismissal of complaint where prisoner failed to accurately disclose
previous litigation); Burrell v. Warden I, 857 F. App’x 624, 625 (11th Cir.
2021) (“An action is malicious when a prisoner misrepresents his prior
litigation history on a complaint form requiring disclosure of such history
and signs the complaint under penalty of perjury, as such a complaint is
an abuse of the judicial process.” (citation omitted)). Dismissal as a
sanction for selective disclosure, much less wholesale misrepresentation,
is well established in this District. See, e.g., Brown v. Wright, CV111044, doc. 12 (S.D. Ga. June 17, 2011); Hood v. Tompkins, CV605-094, doc.
8 (S.D. Ga. Oct. 31, 2005), aff’d, 197 F. App’x 818 (11th Cir. 2006).
However, given the ambiguous chronology and substantively identical
factual allegations of Plaintiff’s two Complaints, the Court cannot be
certain whether the multiple filings were mistaken, rather than
Moreover, since the Complaints raise substantively identical
claims, the Court might consolidate them, rendering the second-filed
request to proceed in forma pauperis moot. Where “actions before the
court involve a common question of law or fact,” the court may join the
actions, in whole or in part, “to avoid unnecessary cost or delay.” Fed. R.
Civ. P. 42(a). Rule 42(a) “codifies a district court’s inherent managerial
power to control the disposition of the causes on its docket with economy
of time and effort for itself, for counsel, and for litigants.” Young v. City
of Augusta, Ga. Through DeVaney, 59 F.3d 1160, 1168 (11th Cir. 1995)
(internal punctuation and citation omitted). Consolidation under Rule
42(a) allows the Court to “eliminate unnecessary repetition and
confusion.” Id. at 1169 (internal punctuation and citation omitted).
Finally, it is clear that, as pleaded, neither Complaint states a claim
upon which relief can be granted.
The first-filed Complaint clearly
identifies Brian Davis, another inmate, as the sole defendant.
CV423-302, doc. 1 at 4. It seeks to have Davis “punished to the highest
extent of the law,” but requests monetary damages from “prison
administration.” Id. at 6. The second-filed Complaint does not name any
defendant at all, see CV 423-322, doc. 1 at 1, 4, but it appears that the
unnamed “defendant,” is, again, Davis, id. at 5. It also seeks to have
“defendant and the administration at Coastal State Prison to be penilized
[sic] to the highest extent of the law,” and monetary damages. Id. at 6.
First, other prisoners are not proper defendants in a 42 U.S.C.
§ 1983 case.
Section 1983 provides relief against defendants acting
“under color of law.” See, e.g., Patrick v. Floyd Med. Ctr., 201 F.3d 1313,
1315 (11th Cir. 2000) (“To obtain relief under § 1983, [Plaintiff] must
show that he was deprived of a federal right by a person acting under
color of state law.”). The inmate defendant that Simon names is, quite
obviously, not acting under color of law. See, e.g., Simonton v. Tennis,
437 F. App’x 60, 62 (3d Cir. 2011) (“We affirm the District’s order, as it
properly concluded that [Plaintiff] cannot sue [another i]nmate . . . under
§ 1983 because he is not a state actor.”); Jackson v. Foster, 372 F. App’x
770, 771 (9th Cir. 2010) (“inmate [defendant] did not act under color of
state law under any formulation of the governmental actor test.”); Fox v.
Harwood, 2009 WL 1117890, at *1 (W.D.N.C. Apr. 24, 2009) (“Plaintiff’s
fellow inmate is not a state actor for purposes of § 1983 liability.”).
Claims against Davis, therefore, appear subject to dismissal.
The requests for relief against “prison administration,” implicates
a possible claim. “[P]rison officials have a duty . . . to protect prisoners
from violence at the hands of other prisoners.” Farmer v. Brennan, 511
U.S. 825, 833 (1994) (internal quotations and citations omitted). “It is
not, however, every injury suffered by one inmate at the hands of another
that translates into a constitutional liability for prison officials
responsible for the victim's safety.” Id. at 834. Merely negligent failure
to protect an inmate from attack does not justify liability under § 1983.
Brown v. Hughes, 894 F.2d 1533, 1537 (11th Cir. 1990). “Prison officials
must have been deliberately indifferent to a known danger before we can
say that their failure to intervene offended ‘evolving standards of
decency,’ thereby rising to the level of a constitutional tort.” Id. (citing
Estelle v. Gamble, 429 U.S. 97, 105-06 (1976)). The threat must rise to
the level of “a strong likelihood, rather than a mere possibility before a
guard’s failure to act can constitute deliberate indifference.” Id. (internal
quotation marks and citation omitted).
Neither of Simon’s complaints allege any fact that suggests that
any particular officer was subjectively aware of any threat. “[I]mputed
or collective knowledge cannot serve as the basis for a claim of deliberate
indifference. . . . Each individual Defendant must be judged separately
and on the basis of what that person knows.” Burnette v. Taylor, 533 F.3d
1325, 1331 (11th Cir. 2008); see also Robinson v. Owens, 2014 WL
2617281, at *5 (M.D. Ga. June 12, 2014) (applying Burnette to analyze a
The closest he comes to alleging any
defendant’s knowledge of the threats to his safety is the allegation that
his “hardships and oppression [was] going on in officers[’] faces and
nothing being done about it.” CV423-322, doc. 1 at 6. To the extent that
Simon might clarify his allegations to state a claim against some prison
official or employee, he must file an amended complaint.
Simon’s requests that Davis and unidentified prison officials be
“punished to the highest extent of the law,” see, e.g., CV423-302, doc. 1 at
6, suggests that he might seek to initiate a criminal investigation or
Private citizens are simply not permitted to initiate
criminal actions in federal court. See, e.g., Lopez v. Robinson, 914 F.2d
486, 494 (4th Cir. 1990) (“No citizen has an enforceable right to institute
a criminal prosecution.” (citing Linda R. v. Richard V., 410 U.S. 614, 619
(1973) (“In American jurisprudence at least, a private citizen lacks a
judicially cognizable interest in the prosecution or nonprosecution of
another.”))); Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir. 1989) (“[A] private
citizen has no authority to initiate a federal criminal prosecution.”). The
Court is also without authority to order the United States Attorney, or
indeed any other law enforcement officer, to initiate a prosecution. See,
e.g., Inmates of Attica Corr. Facility v. Rockefeller, 477 F.2d 375, 379 (2nd
Cir. 1973) (citations omitted) (“federal courts have traditionally and, to
our knowledge, uniformly refrained from overturning, at the insistence
of a private person, discretionary decisions of federal prosecuting
authorities not to prosecute persons regarding whom a complaint of
criminal conduct is made[,] . . . even in cases . . .where . . . serious
questions are raised as to the protection of the civil rights and physical
security of a definable class of victims of crime and as to the fair
administration of the criminal justice system.”).
Such orders would
violate the Constitution’s separation of powers between the Executive
and Judicial Branches. See id. at 379-80 (quotes and cite omitted) (the
United States Attorney, although a member of the bar and an officer of
the court, “is nevertheless an executive official of the Government, and it
is as an officer of the executive department that he exercises a discretion
as to whether or not there shall be a prosecution in a particular case.”).
Given the multiple issues with Simon’s cases, the Court will afford
him an opportunity to clarify his intentions. First, he must address the
defect in the Prisoner Trust Fund Account Statement form. See CV423302, doc. 6.
As the form states, he must have the form completed,
including “a certified copy of the prisoner’s trust account statement,” by
“the appropriate prison official.” Id. at 1. Second, he must explain the
redundant allegations in the two complaints and his failure to fully
disclose his litigation history. To do so, he must respond to this Order
and explain: (1) the discrepancy in his disclosed litigation history and (2)
whether he agrees that these two cases should be consolidated. Finally,
he must submit an Amended Complaint that identifies a proper
defendant or defendants and alleges sufficient facts to state a claim
against that defendant or defendants.
Accordingly, Simon is DIRECTED to submit (1) the properly
completed Prisoner Trust Fund Account Statement form, (2) a written
explanation addressing his failure to disclose his litigation history and
consolidation of these cases, and (3) an Amended Complaint by no later
than November 27, 2023.
Pending final consolidation, the Clerk is
DIRECTED to docket any of Simon’s submissions in both cases. To
facilitate his compliance, the Clerk is DIRECTED to send him a blank
copy of the Prisoner Trust Fund Account Statement form and Form Pro
Se 14 (Complaint for Violation of Civil Rights (Prisoner)). Simon is
advised that his amended complaint will supersede the current operative
complaints and therefore must be complete in itself. See Varnes v. Local
91, Glass Bottle Blowers Ass’n of U.S. & Canada, 674 F.2d 1365, 1370 n.
6 (11th Cir. 1982). Simon is further advised that failure to timely submit
any of the required documents may result in a recommendation that this
case be dismissed for failure to obey a court order or failure to prosecute.
See Fed. R. Civ. P. 41(b).
SO ORDERED, this 13th day of November, 2023.
PHER L. RAY
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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