Thomas v. Lawson et al
REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Plaintiff's 1 Complaint, DENY Plaintiff's request for injunctive relief, and DIRECT the Clerk of Court to CLOSE this case. Any party seeking to object to this Repor t 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 7/25/2017). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 711/2017. (csr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
THOMAS L. THOMAS,
CIVIL ACTION NO.: 5:17-cv-8
KAREN LAWSON; JANET BELL;
VINCENT CULLOTTA; DAVID A.
BASINSKI; and J. KELLY BROOKS,
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This matter is before the Court for review of Plaintiff’s pro se Complaint and Motion to
Proceed in Forma Pauperis. After review, the Court DENIES Plaintiff’s Motion for Leave to
Proceed in Forma Pauperis, (doc. 2). For the reasons which follow, I RECOMMEND the
Court DISMISS Plaintiff’s Complaint, DENY Plaintiff’s request for injunctive relief, DIRECT
the Clerk of Court to CLOSE this case, and DENY Plaintiff in forma pauperis status on appeal.
Plaintiff filed his Complaint on January 12, 2017, pursuant to 42 U.S.C. §§ 1983 through
1986. (Doc. 1.) In his Complaint, which is the third cause of action Plaintiff has filed in this
Court contesting child custody proceedings arising in the State of Ohio and in Brantley County,
Georgia, Plaintiff contends Defendants Lawson, Bell, Cullotta, and Basinski, all of whom are or
were judges in the State of Ohio, and Defendant Brooks, a Brantley County Superior Court
Judge, acted outside of their judicial authority. Specifically, Plaintiff avers Defendants Lawson
and Bell acted without subject matter jurisdiction by entering rulings in an Ohio state custody
proceeding after he had filed a notice of removal in this Court. Plaintiff claims Defendants
Cullotta and Basinski refused to issue orders on certain of his requests and that Defendant
Basinski retaliated against him by refusing to issue an order.
Further, Plaintiff maintains
Defendant Brooks entered a final order denying his motion for relief from judgment and ordered
the clerk not to forward Plaintiff’s appeal by right to the Georgia Court of Appeals. (Id. at pp. 6–
16.) Plaintiff seeks $10,000,000 in damages and the issuance of preliminary injunctive relief
against Defendants. (Id. at pp. 17–18.)
STANDARD OF REVIEW
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); Grayson v. Mayview State
Hosp., 293 F.3d 103, 113 n.19 (3d Cir. 2002) (non-prisoner indigent plaintiffs are “clearly within
the scope of § 1915(e)(2)”); Dutta-Roy v. Fain, No. 1:14-CV-280-TWT, 2014 WL 1795205,
at *2 (N.D. Ga. May 5, 2014) (frivolity review of indigent non-prisoner plaintiff’s complaint).
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)).
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)).
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.
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.”).
Plaintiff’s 42 U.S.C. §§ 1983 Through 1986 Claims
Claims Against Defendants in Their Capacities as Judicial Officials
Judicial immunity bars Plaintiff’s claims against Defendants in their official capacities. 1
Congress did not abrogate the doctrine of judicial immunity when it enacted Section 1983.
Judicial immunity is an absolute immunity, and it applies even when a judge acts maliciously.
Bolin v. Story, 225 F.3d 1234, 1239 (11th Cir. 2000) (“Judges are entitled to absolute judicial
immunity from damages for those acts taken while they are acting in their judicial capacity
unless they acted in the clear absence of all jurisdiction.”); Stump v. Sparkman, 435 U.S. 349,
356 (1978) (holding judicial immunity doctrine applies in Section 1983 actions). Absolute
immunity not only protects against liability but also against a case going to trial at all. Harris v.
Deveaux, 780 F.2d 911, 914 (11th Cir. 1986) (citing Mitchell v. Forsyth, 472 U.S. 511, 526
(1985)). To determine whether a judge is entitled to absolute immunity from money damages
under Section 1983, a two-part test was established in Stump: 1) whether the judge dealt with the
plaintiff in a judicial capacity; and 2) whether the judge acted in the “clear absence of all
jurisdiction.” Id. (quoting Stump, 435 U.S. at 357). The second prong of this test is “only
satisfied if a judge completely lacks subject matter jurisdiction.” Id. at 916.
Plaintiff clearly complains about Defendants’ actions or omissions in their capacities as
judicial officials in cases pending before them in which Plaintiff was a named party. He fails to
make a plausible claim that Defendants acted in the clear absence of jurisdiction. Plaintiff
maintains Defendants Lawson and Bell entered orders in the Ohio child custody case, even
Plaintiff asserts his claims against Defendants are in “their Individual-Capacities outside their Judicial
Capacities[ ]”, (see, e.g., doc. 1, p. 18); however, Plaintiff’s complains about Defendants’ actions in their
roles as judges. Thus, it is appropriate to address Plaintiff’s claims against Defendants under the doctrine
of judicial immunity.
though he had filed his notice of removal in this Court.
However, it appears the orders
Defendants Lawson and Bell entered in the Ohio proceedings were in response to motions
Plaintiff had filed in the Ohio proceedings after he filed the notice of removal in this Court.
(Docs. 1-11, 1-12, 1-13.) These Defendants did not act in a clear absence of all jurisdiction.
Plaintiff cannot complain about judicial actions taken as a result of his filings and claim that
Defendants Lawson and Bell acted outside of their judicial authority. Consequently, the Court
should DISMISS Plaintiff’s Section 1983 claims against all named Defendants based on judicial
Plaintiff’s Claims Against Defendant Brooks, Cullotta, and Basinski
Plaintiff maintains Defendant Brooks directed the Brantley County Clerk not to forward
Plaintiff’s appeal by right of Defendant Brooks’ order to the Georgia Court of Appeals. (Doc. 1,
p. 16.) He also claims Defendants Cullotta and Basinski refused to issue orders to dispose of
Plaintiff’s filings in the Ohio courts. Even if Plaintiff’s claims against these Defendants were not
barred by the doctrine of judicial immunity, Plaintiff is not entitled to his requested relief.
Plaintiff essentially asks this Court to compel Defendants Cullotta, Basinski, and Brooks and the
Brantley County Clerk to perform certain actions in his state court proceedings.
Given the nature of Plaintiff’s requested relief, it appears that Plaintiff has available to
him the option of filing a writ of mandamus with the Georgia Supreme Court as to compelling
Defendant Brooks to perform an action. The Georgia Supreme Court has the authority “[t]o
grant any writ necessary to carry out any purpose of its organization or to compel any inferior
tribunal or officers thereof to obey its order.” O.C.G.A. § 15-2-8(3). There is no evidence
Plaintiff has pursued this option.
Moreover, to the extent Plaintiff wishes for this Court to compel these Defendants to take
specific action, this Court cannot do so. “Federal courts do not have the jurisdiction to issue
writs of mandamus directing state officials in the performance of their duties.” Lawrence v.
Miami-Dade Cty. State Attorney Office, 272 F. App’x 781 (11th Cir. 2008) (“Because the only
relief Lawrence sought was a writ of mandamus compelling action from state officials, not
federal officials, the district court lacked jurisdiction to grant relief and did not err in dismissing
the petition.”); Moye v. Clerk, DeKalb Cty. Super. Ct., 474 F.2d 1275, 1276 (5th Cir. 1973).
Therefore, federal district courts have repeatedly held that they lack jurisdiction to issue a writ of
mandamus as to state officials. See, e.g., Church of Scientology of Ga., Inc. v. City of Sandy
Springs, 843 F. Supp. 2d 1328, 1380 (N.D. Ga. 2012) (“Federal district courts do not have the
authority to issue writs of mandamus to direct state officials in the performance of their duties.”).
Accordingly, the Court should DISMISS Plaintiff’s claims against Defendants Brooks, Cullotta,
and Basinski for this additional reason.
Plaintiff’s Conspiracy Claims
A conspiracy to violate another person’s constitutional rights violates Section 1983. In
order to state a claim for relief under 42 U.S.C. § 1983, a plaintiff must satisfy two elements.
First, a plaintiff must allege that an act or omission deprived him “of some right, privilege, or
immunity secured by the Constitution or laws of the United States.” Hale v. Tallapoosa Cty., 50
F.3d 1579, 1582 (11th Cir. 1995). Second, a plaintiff must allege that the act or omission was
committed by “a person acting under color of state law.” Id.
“To establish a prima facie case of [a S]ection 1983 conspiracy, a plaintiff must show,
among other things, that defendants ‘reached an understanding to violate [his] rights.’” Rowe v.
City of Fort Lauderdale, 279 F.3d 1271, 1283 (11th Cir. 2007) (quoting Strength v. Hubert, 854
F.2d 421, 425 (11th Cir. 1988)). A “plaintiff does not have to produce a ‘smoking gun’ to
establish the ‘understanding’ or ‘willful participation’ required to show a conspiracy, . . . but
must show some evidence of agreement between the defendants.” Id. at 1283–84 (quoting
Bendiburg v. Dempsey, 909 F.2d 463, 469 (11th Cir. 1990)). “[T]he linchpin for conspiracy is
agreement.” Bailey v. Bd. of Cty. Comm’rs of Alachua Cty., 956 F.2d 1112, 1122 (11th Cir.
1992). “[M]erely string[ing] together” alleged acts of individuals is not sufficient to establish the
existence of a conspiracy. Harvey v. Harvey, 949 F.2d 1127, 1133 (11th Cir. 1992).
Likewise, “[t]o state a claim under [42 U.S.C.] § 1985(3), a plaintiff must allege: (1) a
conspiracy; (2) for the purpose of depriving a person or class of persons of the equal protection
of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of
the conspiracy; (4) resulting in an injury to person or property, or a deprivation of any right or
privilege of a citizen of the United States.” Gibbs v. United States, 517 F. App’x 664, 669 (11th
Cir. 2013) (citing Childree v. UAP/GA AG Chem., Inc., 92 F.3d 1140, 1146–47 (11th Cir.
“The language of Section 1985 which requires an intent to deprive one of equal
protection or equal privileges and immunities means that there must be some racial or otherwise
class-based invidiously discriminatory animus behind the conspirators’ action.” Byrd v. Clark,
783 F.2d 1002, 1007–08 (11th Cir. 1986), abrogated on other grounds by Nolin v. Isbell, 207
F.3d 1253, 1256 (11th Cir. 2000).
While “Section 1983 provides redress where a person acting under color of state law
violates another’s federally protected rights,” “Section 1986, by contrast, creates a cause of
action against any person who has knowledge of a conspiracy to interfere with civil rights and
has the power to prevent the commission of such wrongs but neglects to do so.” Favors-Morrell
v. United States, No. CV 215-24, 2016 WL 3221859, at *5 (S.D. Ga. June 8, 2016), aff’d sub
nom., Morrell v. United States, No. 16-15103 (11th Cir. Dec. 8, 2016).
Here, Plaintiff’s Complaint is completely lacking in any factual allegations that
Defendants reached an agreement to or intended to conspire against him. Additionally, Plaintiff
fails to make any assertion that any Defendant was aware of an alleged conspiracy to violate his
rights and neglected to prevent such interference. Instead, Plaintiff merely states in a conclusory
fashion that Defendants “conspired to violate this Plaintiff of his clearly established ‘Federal
(Doc. 1, p. 17.)
In addition, there is nothing before the Court
indicating that Defendants acted with a discriminatory animus. Consequently, the Court should
DISMISS Plaintiff’s conspiracy claims under Sections 1983, 1985, and 1986. 2
Plaintiff’s Retaliation Claims Against Defendant Basinski
Here, Plaintiff asserts Defendant Basinski retaliated against him by refusing to enter an
order in the Ohio case pending before Defendant Basinski. Plaintiff ostensibly contends that
Defendant Basinski’s actions violated Plaintiff’s First Amendment right to redress.
To state a claim for retaliation for exercising his First Amendment rights “a plaintiff must
establish that: (1) the speech or act was constitutionally protected; (2) the defendant’s retaliatory
conduct adversely affected the protected speech; and (3) a causal connection existed between the
retaliatory conduct and the adverse effect on speech.” Bennett v. Hendrix, 423 F.3d 1247, 1250
(11th Cir. 2005). First Amendment retaliation is actionable because “it threatens to inhibit
exercise of the protected right.” Id. at 1253. A plaintiff “need not actually have been deprived
of [his] First Amendment rights in order to establish a claim of retaliation—because conduct that
tends to chill the exercise of a constitutional right might not itself deprive a citizen of such a
Plaintiff also attempts to invoke this Court’s jurisdiction pursuant to 42 U.S.C. § 1984. (Doc. 1.)
However, this statute was “omitted” from Title 42. See 42 U.S.C. § 1984.
right—to recover for retaliation,” but the plaintiff “must show that the defendant[’s] conduct
resulted in something more than a ‘de minimis inconvenience’ to the exercise of his First
Amendment rights.” Bethel v. Town of Loxley, 221 F. App’x 812, 813 (11th Cir. 2006) (internal
citations omitted). A plaintiff “must have suffered an adverse effect on the exercise of [his] First
Amendment rights.” Bennett, 423 F.3d at 1252. “A plaintiff suffers adverse action if the
defendant’s allegedly retaliatory conduct would likely deter a person of ordinary firmness from
the exercise of First Amendment rights.” Id. at 1250.
Plaintiff fails to set forth any facts which reveal that, even if Defendant Basinski
retaliated against him by refusing to enter an order, Plaintiff suffered any inconvenience to the
exercise of his First Amendment rights—de minimis or otherwise. Additionally, Plaintiff fails to
establish that he suffered any adverse effect on his First Amendment rights as a result of
Defendant Basinski’s alleged retaliatory actions. Instead, Plaintiff summarily states Defendant
Basinksi retaliated against him, which is an insufficient basis for liability. Thus, the Court
should DISMISS Plaintiff’s claims against Defendant Basinski for this additional reason.
Plaintiff’s Request for Preliminary Injunction
Plaintiff requests that this Court issue a preliminary injunction against Defendants to
prevent “any acts of Retaliation, harassment, coercions, threats, and intimidation[.]” (Doc. 1,
p. 18.) To be entitled to a preliminary injunction or a temporary restraining order, the movant
must show: (1) a substantial likelihood of ultimate success on the merits; (2) an injunction or
protective order is necessary to prevent irreparable injury; (3) the threatened injury outweighs the
harm the injunction or protective order would inflict on the non-movant; and (4) the injunction or
protective order would not be adverse to the public interest. Schiavo ex rel. Schindler v.
Schiavo, 403 F.3d 1223, 1225–26 (11th Cir. 2005).
In this Circuit, an “injunction is an
extraordinary and drastic remedy not to be granted unless the movant clearly established the
‘burden of persuasion’ as to the four requisites.” Horton v. City of Augustine, 272 F.3d 1318,
1326 (11th Cir. 2001). If a plaintiff succeeds in making such a showing, then “the court may
grant injunctive relief, but the relief must be no broader than necessary to remedy the
constitutional violation.” Newman v. Alabama, 683 F.2d 1312, 1319 (11th Cir. 1982).
Here, Plaintiff clearly fails at the first of these four prerequisites. As noted above,
Plaintiff fails to establish any viable claim for relief, and thus, he cannot show he has a
substantial likelihood of success on the relative merits of his claims. Accordingly, the Court
should DENY Plaintiff’s request for a preliminary injunction.
Leave to Appeal in Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. 3
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 taken 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
theories are indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v.
Gross, 984 F.2d 392, 393 (11th Cir. 1993). 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
A certificate of appealability is not required in this civil action.
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.
For the reasons set forth above, the Court DENIES Plaintiff’s Motion for Leave to
Proceed in Forma Pauperis, (doc. 2). For these same reasons, I RECOMMEND that the Court
DISMISS Plaintiff’s Complaint, DENY Plaintiff’s request for injunctive relief, 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 is
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.
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 Plaintiff.
SO ORDERED and REPORTED and RECOMMENDED, this 11th day of July, 2017.
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?