Vitto v. Gramiak et al
ORDER DEFERRING ruling on Plaintiff's original Complaint and Motions for injunctive relief and ORDERS Plaintiff to file another amendment to his Complaint within twenty-one (21) days of this Order, as set forth herein. The Court DIRECTS the Clerk of Court to forward the appropriate 42 U.S.C. § 1983 complaint form to Plaintiff, together with a copy of this Order. Signed by Magistrate Judge R. Stan Baker on 3/24/2017. (csr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
CIVIL ACTION NO.: 5:16-cv-109
TOM GRAMIAK, ET AL., individually and in
their official capacities,
Plaintiff, who is currently housed at Ware State Prison in Waycross, Georgia, filed this
cause of action pursuant to 42 U.S.C. § 1983 to contest certain conditions of his confinement.
(Doc. 1.) Plaintiff has also filed a Motion for Emergency Injunction and a Motion for Injunction.
(Docs. 3, 8.) For the reasons set forth below, the Court DEFERS ruling on Plaintiff’s original
Complaint and Motions for injunctive relief and ORDERS Plaintiff to file another amendment to
his Complaint within twenty-one (21) days of this Order, as set forth herein.
STANDARD OF REVIEW
Plaintiff has brought 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] . . .
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
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.”).
In his Complaint, Plaintiff lists twenty-five (25) individuals as Defendants and contends
these Defendants violated his constitutional rights. (Doc. 1.) Specifically, Plaintiff asserts
Defendants stalked him and his material witness, Charles Harris.
Plaintiff also asserts
Defendants threatened to silence, hurt, and kill Plaintiff due to grievances he filed and Plaintiff’s
warning to Defendants that he would file a federal lawsuit against them. (Id. at p. 5.) Plaintiff
contends Defendants tried to prevent him from filing a lawsuit. Plaintiff alleges Defendants
denied him access to heat during cold weather, access to the law library, and access to the JPay
kiosk. Plaintiff states that Defendants are “stalking” his “grievances and legal mail to try to
violate and suppress [his] freedom of speech to unlawfully deny access to court[.]” (Id.) In
addition, Plaintiff states “all defendants” have conspired to kill him. (Id.) Plaintiff avers
Defendant John Doe poisoned his and his material witness’ food trays in an effort to kill Plaintiff
and his material witness.
The allegations Plaintiff sets forth in his Complaint are not related to each other. A
plaintiff may not join claims and various defendants in one action unless the claims “arise out of
the same transaction, occurrence, or series of transactions or occurrences; and any question of
law or fact common to all defendants will arise in the action.” Fed. R. Civ. P. 20(a). Moreover,
Plaintiff’s Complaint is a quintessential “shotgun pleading” which the Eleventh Circuit Court of
Appeals and this Court do not permit. Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955,
979 n.54 (11th Cir. 2008). Accordingly, Plaintiff’s Complaint in its current form fails to state a
viable claim. However, the Court will provide Plaintiff the opportunity to amend his Complaint
and DEFERS frivolity review until such an Amended Complaint is filed.
Therefore, the Court DIRECTS Plaintiff to file an Amended Complaint within twentyone (21) days from the date of this Order. The Court also DIRECTS Plaintiff to:
(1) draft his Amended Complaint on the complaint form provided by the Clerk of
(2) clearly caption it as an amendment to the original complaint and place the civil
action number of this case on the first page of the form;
(3) add no more than ten pages to the form;
(4) write legibly and only on one side of each page;
(5) provide the name of each intended defendant;
(6) provide only factual allegations concerning events where the rights of Plaintiff
himself were violated or Plaintiff himself was injured, including the date and location
of each alleged violation;
(7) only assert claims that arose from the same transaction or occurrence or series of
related transactions or occurrences;
(8) clearly identify each defendant responsible for each alleged violation;
(9) omit all legal argument or conclusions;
(10) provide complete information on the administrative relief Plaintiff has pursued,
including whether he has filed any grievance on the claims he asserts in this action,
the outcome of any grievance, and whether Plaintiff filed any appeal regarding any
(11) provide detailed information on all prisoner civil actions Plaintiff has filed.
The Court DIRECTS the Clerk of Court to forward the appropriate 42 U.S.C. § 1983
complaint form to Plaintiff, together with a copy of this Order. After Plaintiff files an Amended
Complaint, the Court will conduct the requisite frivolity review. If Plaintiff does not file an
appropriate Amended Complaint, the Court may dismiss this action for failure to prosecute and
failure to follow this Court’s Orders. Smith v. Owens, 625 F. App’x 924, 928 (11th Cir. 2015)
(upholding this Court’s dismissal for failure to comply with Federal Rule of Civil Procedure
20(a)); Brown v. Tallahassee Police Dep’t, 205 F. App’x 802, 802 (11th Cir. 2006) (upholding
dismissal for failure to prosecute Section 1983 claims where plaintiff failed to follow court order
to file amended complaint and court had informed plaintiff that noncompliance could lead to
For the above stated reasons, the Court DEFERS ruling on Plaintiff’s original Complaint
and Motions for injunctive relief and ORDERS Plaintiff to file another amendment to his
Complaint within twenty-one (21) days of this Order. Should Plaintiff fail to abide by this
directive, the Court will dismiss this case for failure to prosecute and failure to follow a court
SO ORDERED, this 24th day of March, 2017.
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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