Pierce v. Flash Food Store, et al.

Filing 21

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Plaintiff's 1 Complaint, without prejudice, pursuant to 28 U.S.C. § 1915(f) and that Plaintiff be DENIED in forma pauperis status on appeal. Moreover, all pending M otions should be DENIED AS MOOT. Any party seeking to object to this Report and Recommendation is ORDERED to file specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered (Objections to R&R due by 1/13/2016). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 12/30/2015. (ca)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
WAYCROSS DIVISION

CURTIS PIERCE,
Plaintiff,
CIVIL ACTION NO.: 5:15-cv-42
v.
FLASH FOOD STORE; CITY OF
WAYCROSS; OFFICER T. GRANT; CITY
OF WAYCROSS POLICE DEPARTMENT;
K-9 OFFICER T. GRANT; CINDY
CAVENDER; and GEORGIA
DEPARTMENT OF CORRECTIONS
UNIFORM SECURITY BREACH
OFFICERS,
Defendants.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, currently an inmate at Washington State Prison in Davisboro, Georgia, filed this
action in the Northern District of Georgia. Because Plaintiff appeared to bring suit against
Defendants who resided in this District, that Court transferred the case to this District. (Doc. 2.)
After review, the Court VACATES its July 13, 2015 Order, (doc. 11), and December 8, 2015
Order, (doc. 18), and DENIES Plaintiff’s Motions to Proceed In Forma Pauperis, (docs. 8, 10).
See McKenzie v. U.S. Dep't of Justice, 143 Fed. Appx. 165 (11th Cir.2005) (district court may
revisit earlier order allowing prisoner suit to proceed). Further, I RECOMMEND that the Court
DISMISS Plaintiff’s Complaint, without prejudice, pursuant to 28 U.S.C. § 1915(g) and that
Plaintiff be DENIED in forma pauperis status on appeal.

PLAINTIFF’S ALLEGATIONS
Plaintiff originally filed his Complaint, (doc. 1), on June 8, 2015, and has amended his
Complaint on several occasions. (Docs. 9, 12, 15, & 19.) However, despite these amendments,
Plaintiff’s claims remain nonsensical to say the least.

For example, in his most recent filing,

Plaintiff includes the following phrase,
daily voice activists, label & audio of an-inn domestic violence intent, held by
through small prison business, located across the state of Georgia by contractual
confederate label employees held in-an through radiactive [sic] hazzardest [sic]
voice and sound carriers in travel of nuclear nusance [sic] in travel of nuclaur [sic]
nusance [sic] by waist system and growth of an nucular [sic] nusance [sic] that
attactes [sic] the body.
(Doc. 19, p. 2.) The Court has reviewed Plaintiff’s pleadings in detail and has attempted,
without success, to find some rationale or meaning within Plaintiff’s claims.
DISCUSSION
I.

Section 1915(g)
A prisoner proceeding in a civil action against officers or employees of government

entities must comply with the mandates of the Prison Litigation Reform Act (“PLRA”), 28
U.S.C. § 1915. 28 U.S.C. § 1915(g) of the PLRA provides:
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). Furthermore, 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. Allin, 144 F.3d 719, 723 (11th Cir. 1998); Malautea v. Suzuki Motor

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Co., 987 F.2d 1536, 1544 (11th Cir.1993) (characterizing failure to comply with court orders as
“abuse of the judicial process”). Section 1915(g) “requires frequent filer prisoners to prepay the
entire filing fee before federal courts may consider their lawsuits and appeals.” Rivera, 144 F.3d
at 731. The Eleventh Circuit upheld the constitutionality of Section 1915(g) in Rivera. In so
doing, the Court concluded that Section 1915(g) does not violate an inmate’s rights to access to
the courts, to due process of law, or to equal protection, or the doctrine of separation of powers.
Rivera, 144 F.3d at 721–27.
A review of Plaintiff=s history of filings reveals that he has brought at least four civil
actions or appeals which were dismissed and count as strikes under Section 1915(g):
•

Order Pierce v. Ware Cty. Detention Ctr., et al., 5:10-cv-18 (S.D. Ga. May 13,
2010) ECF No. 12 (dismissing Plaintiff’s complaint for failure to adhere to Court
order);

•

Order Pierce v. Hall, et al., 4:98-cv-307 (N.D. Ga. Feb. 16, 1999) ECF No. 3
(dismissing Plaintiff’s complaint for failure to adhere to Court order);

•

Order Pierce v. Brantley, et al., 5:94-cv-10 (S.D. Ga. March 1, 1994) ECF No. 5
(dismissing Plaintiff’s complaint upon frivolity review);

•

Order Pierce v. Tanner, et al., 5:91-cv-300 (S.D. Ga. Oct. 15, 1991) ECF No. 1
(dismissing Plaintiff’s complaint upon frivolity review).

Because Plaintiff has filed at least three previously dismissed cases or appeals which qualify as
strikes under Section 1915(g), Plaintiff may not proceed in forma pauperis in this action unless
he can demonstrate that he meets the “imminent danger of serious physical injury” exception to
Section 1915(g).

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“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 Cnty. Judicial Circuit, No. CV407-181, 2008 WL 766661, at *1 (S.D. Ga.
Mar. 20, 2008) (quoting Skillern v. Jackson, No. CV606-49, 2006 WL 1687752, at *2 (S.D. Ga.
June 14, 2006) (citing Brown v. Johnson, 387 F.3d 1344, 1349 (11th Cir.2004))). General and
conclusory allegations not grounded in specific facts indicating that injury is imminent cannot
invoke the Section 1915(g) exception.

Margiotti v. Nichols, No. CV306-113, 2006 WL

1174350, at *2 (N.D. Fla. May 2, 2006). “Additionally, ‘it is clear that a prisoner cannot create
the imminent danger so as to escape the three strikes provision of the PLRA.’” Ball v. Allen,
No. 06-0496, 2007 WL 484547, at *2 (S.D. Ala. Feb. 8, 2007) (citing Muhammad v.
McDonough, No. CV306-527-J-32, 2006 WL 1640128, at *1 (M.D. Fla. June 9, 2006)).
Plaintiff should not be excused from prepaying the filing fee because of the imminent
danger of serious physical injury. Rather, Plaintiff’s Complaint fails to make a cognizable and
plausible claim of any damage, must imminent damage. Therefore, Section 1915(g) bars him
from proceeding in forma pauperis in this case. Should Plaintiff choose to prosecute these
claims while incarcerated, he must bring a separate action and pay the full filing fee.
II.

Leave to Appeal In Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. 1

Though

Plaintiff has, of course, not yet filed a notice of appeal, it would be appropriate to address these
issues in the Court’s order of dismissal. Fed. R. App. P. 24(a)(3) (trial court may certify that
appeal is not take in good faith “before or after the notice of appeal is filed”).
An appeal cannot be taken in forma pauperis if the trial court certifies that the appeal is
not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this
1

A certificate of appealablity is not required in this Section 1983 action.

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context must be judged by an objective standard. Busch v. Cty. of Volusia, 189 F.R.D. 687, 691
(M.D. Fla. 1999). A party does not proceed in good faith when he seeks to advance a frivolous
claim or argument. See Coppedge v. United States, 369 U.S. 438, 445 (1962). A claim or
argument is frivolous when it appears the factual allegations are clearly baseless or the legal
theories are indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v.
Gross, 984 F.2d 392, 393 (11th Cir. 1993). Or, stated another way, an in forma pauperis action
is frivolous and, thus, not brought in good faith, if it is “without arguable merit either in law or
fact.” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown v. United States,
Nos. 407CV085, 403CR001, 2009 WL 307872, at *1–2 (S.D. Ga. Feb. 9, 2009).
Based on the above analysis of Plaintiff’s action, there are no non-frivolous issues to
raise on appeal, and an appeal would not be taken in good faith. Moreover, as a “three striker”
Plaintiff is not only barred from filing a civil action in forma pauperis, he is also barred from
filing an appeal in forma pauperis while he is a prisoner. Thus, the Court should deny him in
forma pauperis status on appeal.
CONCLUSION
For the foregoing reasons, the Court VACATES its July 13, 2015 Order, (doc. 11), and
December 8, 2015 Order, (doc. 18), and DENIES Plaintiff’s Motions to Proceed In Forma
Pauperis, (docs. 8, 10).

Further, I RECOMMEND that the Court DISMISS Plaintiff’s

Complaint, without prejudice, pursuant to 28 U.S.C. § 1915(g) and that Plaintiff be DENIED in
forma pauperis status on appeal.

Moreover, all pending Motions should be DENIED AS

MOOT.
Any party seeking to object to this Report and Recommendation is ORDERED to file
specific written objections within fourteen (14) days of the date on which this Report and

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Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the Complaint must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action.
Upon receipt of objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report to which
objection are made and may accept, reject, or modify in whole or in part, the findings or
recommendations made by the Magistrate Judge.

Objections not meeting the specificity

requirement set out above will not be considered by a District Judge. The Clerk of Court is
DIRECTED to serve a copy of this Report and Recommendation upon Plaintiff.
SO ORDERED and REPORTED and RECOMMENDED, this 30th day of December,
2015.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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