Tutt v. Gramaik et al

Filing 8

ORDER VACATING the Court's Orders dated October 28 and November 16, 2016, and now DENIES Plaintiff's Motion for Leave to Proceed in Forma Pauperis re: 3 Order on Motion for Leave to Proceed in forma pauperis, and 6 Order Directing Prisoner Payment. Signed by Magistrate Judge R. Stan Baker on 1/4/2017. (csr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
WAYCROSS DIVISION
DARREYL TUTT,
Plaintiff,

CIVIL ACTION NO.: 5:16-cv-97

v.
WARDEN TOM GRAMIAK; EDWINA
JOHNSON, Deputy Warden of Care &
Treatment; C/O MORRIS; C/O MERRITT;
C/O BOYD; SGT. GREEN; NURSE J.
BRADY; TERRY WILSON, Health Care
Administrator; DR. FERRELL; MRS.
BROCK; and MRS. CONTEH,
Defendants.
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, who is currently housed at Ware State Prison in Waycross, Georgia, filed a
cause of action pursuant to 42 U.S.C. § 1983. (Doc. 1.) Concurrently, Plaintiff also filed a
Motion for Leave to Proceed in Forma Pauperis. (Doc. 2.) The Court granted Plaintiff’s
Motion by Order dated October 28, 2016. (Doc. 3.) The Court also directed that payments be
made from Plaintiff’s prison trust account by Order dated November 16, 2016. (Doc. 6.) For the
reasons which follow, the Court VACATES its Orders dated October 28 and November 16,
2016, and now DENIES Plaintiff’s Motion for Leave to Proceed in Forma Pauperis. For these
same reasons, I RECOMMEND that the Court DISMISS Plaintiff’s Complaint, DIRECT the
Clerk of Court to CLOSE this case, and DENY Plaintiff leave to proceed in forma pauperis on
appeal.

BACKGROUND
In his Complaint, Plaintiff asserts that he sustained injury to his fingers in October 2015
after a correctional officer slammed Plaintiff’s hand in his cell door. (Doc. 1, p. 5.) Plaintiff
contends his injury required medical attention, yet Nurse Brady only put Plaintiff’s fingers in a
splint, despite his cries of intense pain. Plaintiff states an x-ray later confirmed his fingers were
broken, and he was not taken to an orthopedic surgeon for a “true diagnosis”. (Id.) Additionally,
Plaintiff maintains Defendants Gramiak and Johnson knew of his injury, but these Defendants
ignored Plaintiff’s serious medical needs. (Id. at p. 6.)
STANDARD OF REVIEW
Plaintiff seeks to bring this action in forma pauperis under 42 U.S.C. § 1983. Under 28
U.S.C. § 1915(a)(1), the Court may authorize the filing of a civil lawsuit without the prepayment
of fees if the plaintiff submits an affidavit that includes a statement of all of his assets and shows
an inability to pay the filing fee and also includes a statement of the nature of the action which
shows that he is entitled to redress. Even if the plaintiff proves indigence, the Court must
dismiss the action if it is frivolous or malicious, or fails to state a claim upon which relief may be
granted. 28 U.S.C. §§ 1915(e)(2)(B)(i)–(ii). Additionally, pursuant to 28 U.S.C. § 1915A, the
Court must review a complaint in which a prisoner seeks redress from a governmental entity.
Upon such screening, the Court must dismiss a complaint, or any portion thereof, that is
frivolous or malicious, or fails to state a claim upon which relief may be granted or which seeks
monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).
When reviewing a Complaint on an application to proceed in forma pauperis, the Court is
guided by the instructions for pleading contained in the Federal Rules of Civil Procedure. See
Fed. R. Civ. P. 8 (“A pleading that states a claim for relief must contain [among other things] . . .

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a short and plain statement of the claim showing that the pleader is entitled to relief.”); Fed. R.
Civ. P. 10 (requiring that claims be set forth in numbered paragraphs, each limited to a single set
of circumstances). Further, a claim is frivolous under Section 1915(e)(2)(B)(i) “if it is ‘without
arguable merit either in law or fact.’” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002)
(quoting Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001)).
Whether a complaint fails to state a claim under Section 1915(e)(2)(B)(ii) is governed by
the same standard applicable to motions to dismiss under Federal Rule of Civil
Procedure 12(b)(6). Thompson v. Rundle, 393 F. App’x 675, 678 (11th Cir. 2010). Under that
standard, this Court must determine whether the complaint contains “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A
plaintiff must assert “more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not” suffice. Twombly, 550 U.S. at 555. Section 1915 also
“accords judges not only the authority to dismiss a claim based on an indisputably meritless legal
theory, but also the unusual power to pierce the veil of the complaint’s factual allegations and
dismiss those claims whose factual contentions are clearly baseless.” Bilal, 251 F.3d at 1349
(quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)).
In its analysis, the Court will abide by the long-standing principle that the pleadings of
unrepresented parties are held to a less stringent standard than those drafted by attorneys and,
therefore, must be liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972); Boxer X v.
Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) (“Pro se pleadings are held to a less stringent
standard than pleadings drafted by attorneys.”) (emphasis omitted) (quoting Hughes v. Lott, 350
F.3d 1157, 1160 (11th Cir. 2003)). However, Plaintiff’s unrepresented status will not excuse

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mistakes regarding procedural rules. McNeil v. United States, 508 U.S. 106, 113 (1993) (“We
have never suggested that procedural rules in ordinary civil litigation should be interpreted so as
to excuse mistakes by those who proceed without counsel.”).
DISCUSSION
I.

Dismissal for Abuse of Judicial Process
The Complaint form directly asks Plaintiff whether he has “brought any lawsuits in

federal court while incarcerated in any institution[ ]” prior to his current filing. (Doc. 1, p. 2
(emphasis supplied).) Plaintiff marked the space for “No”, and he also noted that the subsequent
question regarding parties to previous lawsuits was “not applicable” and marked through this
question. (Id.) However, a search of Plaintiff’s litigation history reveals that he filed at least one
lawsuit in federal court prior to the execution of his present Complaint on October 27, 2016.
This previously-filed lawsuit is: Tutt v. Hall, et al., 6:01-cv-104 (S.D. Ga.) (filed Aug. 30, 2001).
As previously stated, Section 1915 requires a court to dismiss a prisoner’s action if, at
any time, the court determines that it is frivolous or malicious, fails to state a claim, or seeks
relief from an immune defendant. 28 U.S.C. § 1915(e)(2)(B). Significantly, “[a] finding that the
plaintiff engaged in bad faith litigiousness or manipulative tactics warrants dismissal” under
Section 1915. Redmon v. Lake Cty. Sheriff’s Office, 414 F. App’x 221, 225 (11th Cir. 2011)
(alteration in original) (quoting Attwood v. Singletary, 105 F.3d 610, 613 (11th Cir. 1997)). In
addition, Federal Rule of Civil Procedure 11(c) permits a court to impose sanctions, including
dismissal, for “knowingly fil[ing] a pleading that contains false contentions.” Id. at 225–26
(citing Fed. R. Civ. P. 11(c)). Again, although pro se pleadings are to be construed liberally, “a
plaintiff’s pro se status will not excuse mistakes regarding procedural rules.” Id. at 226.

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Relying on this authority, the Court of Appeals for the Eleventh Circuit has consistently
upheld the dismissal of cases where a pro se prisoner plaintiff has failed to disclose his previous
lawsuits as required on the face of the Section 1983 complaint form. See, e.g., Redmon, 414 F.
App’x at 226 (pro se prisoner’s nondisclosure of prior litigation in Section 1983 complaint
amounted to abuse of judicial process resulting in sanction of dismissal); Shelton v. Rohrs, 406
F. App’x 340, 341 (11th Cir. 2010) (same); Young v. Sec’y Fla. for Dep’t of Corr., 380 F. App’x
939, 941 (11th Cir. 2010) (same); Hood v. Tompkins, 197 F. App’x 818, 819 (11th Cir. 2006)
(same). Even where the prisoner has later provided an explanation for his lack of candor, the
Court has generally rejected the proffered reason as unpersuasive. See, e.g., Redmon, 414 F.
App’x at 226 (“The district court did not abuse its discretion in concluding that Plaintiff’s
explanation for his failure to disclose the Colorado lawsuit—that he misunderstood the form—
did not excuse the misrepresentation and that dismissal was a proper sanction.”); Shelton, 406 F.
App’x at 341 (“Even if [the plaintiff] did not have access to his materials, he would have known
that he filed multiple previous lawsuits.”); Young, 380 F. App’x at 941 (finding that not having
documents concerning prior litigation and not being able to pay for copies of same did not
absolve prisoner plaintiff “of the requirement of disclosing, at a minimum, all of the information
that was known to him”); Hood, 197 F. App’x at 819 (“The objections were considered, but the
district court was correct to conclude that to allow [the plaintiff] to then acknowledge what he
should have disclosed earlier would serve to overlook his abuse of the judicial process.”).
Another district court in this Circuit has explained the importance of this information as
follows:
[t]he inquiry concerning a prisoner’s prior lawsuits is not a matter of idle
curiosity, nor is it an effort to raise meaningless obstacles to a prisoner’s access to
the courts. Rather, the existence of prior litigation initiated by a prisoner is
required in order for the Court to apply 28 U.S.C. § 1915(g) (the “three strikes

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rule” applicable to prisoners proceeding in forma pauperis). Additionally, it has
been the Court’s experience that a significant number of prisoner filings raise
claims or issues that have already been decided adversely to the prisoner in prior
litigation. . . . Identification of prior litigation frequently enables the Court to
dispose of successive cases without further expenditure of finite judicial
resources.
Brown v. Saintavil, No. 2:14-CV-599-FTM-29, 2014 WL 5780180, at *3 (M.D. Fla. Nov. 5,
2014) (emphasis omitted).
Plaintiff “declare[d] under penalty of perjury” that the contents of his Complaint were
“true and correct.” (Doc. 1, p. 6.) However, Plaintiff misrepresented his litigation history in his
Complaint. The plain language of the Complaint form is clear, and Plaintiff failed to answer
truthfully. (Id. at p. 2.) This Court will not tolerate such lack of candor, and consequently, the
Court should DISMISS this action for Plaintiff’s failure to truthfully disclose his litigation
history, as required.
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
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

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A certificate of appealability is not required in this Section 1983 action.
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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. Thus, the Court should DENY
Plaintiff in forma pauperis status on appeal.
CONCLUSION
For the numerous reasons set forth above, the Court VACATES its October 28 and
November 16, 2016, Orders and DENIES Plaintiff’s Motion to Proceed in Forma Pauperis in
this Court.

For these same reasons, I RECOMMEND the Court DISMISS Plaintiff’s

Complaint without prejudice, DIRECT the Clerk of Court to CLOSE this case, and DENY
Plaintiff leave to appeal in forma pauperis.
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and
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. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.

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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, proposed
findings, or recommendation to which objection is 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. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final
judgment entered by or at the direction of a District Judge. The Court DIRECTS the Clerk of
Court to serve a copy of this Report and Recommendation upon the Plaintiff.
SO ORDERED and REPORTED and RECOMMENDED, this 4th day of January,
2017.

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

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