Parks v. State of Georgia et al

Filing 23

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS as moot the remaining Motions re 11 and 17 MOTIONS for Protective Order, and DISMISS without prejudice Plaintiff's 10 Amended Complaint, based on his failure to fo llow this Court's Order, and DIRECT the Clerk to CLOSE this case and enter the appropriate judgment of dismissal. It is further RECOMMENDED the Court 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. (Objections to R&R due by 1/16/2018). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 1/2/2018. (ca)

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

ROBERT PARKS,
Plaintiff,

CIVIL ACTION NO.: 5:17-cv-47

v.
STATE OF GEORGIA, et al.,
Defendants.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, who is incarcerated at Augusta State Medical Prison in Grovetown, Georgia,
filed a Complaint pursuant to 42 U.S.C. § 1983. (Doc. 1.) Plaintiff also filed a Motion to
Proceed in Forma Pauperis. (Doc. 3.) This Court deferred ruling on Plaintiff’s Motion by Order
dated July 10, 2017, because Plaintiff did not file his Motion on the Court’s preferred forms and
because Plaintiff’s claims were unrelated to each other. (Doc. 8.) The Court ordered Plaintiff to
correct the deficiencies in his Motion and to amend his Complaint appropriately within fourteen
(14) days of its Order and warned Plaintiff that his failure to do so would result in the dismissal
of his Complaint. (Id. at pp. 4, 7.) Plaintiff re-submitted his Motion on the proper forms and has
filed an Amended Complaint and various other Motions.
For the reasons which follow, the Court DENIES Plaintiff’s Motions for Leave to
Proceed in Forma Pauperis, (docs. 3, 9). For purposes of the Court’s frivolity review, the Court
GRANTS Plaintiff’s Motions to Amend his Complaint, (docs. 11, 14). The Court also DENIES
Plaintiff’s Motion to Appoint Counsel, (doc. 11), and DISMISSES as moot Plaintiff’s Motions
for Documents, (docs. 18, 20). For these same reasons, I RECOMMEND the Court DISMISS

without prejudice Plaintiff’s Complaint based on his failure to follow this Court’s Order,
DISMISS as moot the remaining Motions for Protective Order, (docs. 11, 17), and DIRECT the
Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal.
Additionally, I RECOMMEND the Court DENY Plaintiff leave to appeal in forma pauperis.
BACKGROUND
Plaintiff brings his Complaint pursuant to 42 U.S.C. § 1983. In his Complaint, Plaintiff
asserts Defendants “have cause[d him] to suffer grievous harm” and the “deprivation” of his
rights. (Doc. 1, p. 2.) Plaintiff also asserts the State of Georgia has committed fraud, torture,
torment, controlling abuse, molestation, vexatious acts, annoyance, and irritation, all of which
have caused him pain and suffering. Additionally, Plaintiff maintains the “administration” has
intercepted his mail and phone calls. (Id.) Plaintiff avers the Department of Corrections is using
computers on him and the citizens of the State of Georgia, which causes blindness, and these
computers have instituted plots to have Plaintiff killed, including at Wheeler Correctional
Facility. He contends undisclosed staff and other inmates have beaten him, almost putting him
in a coma. Plaintiff states he was placed in a cell at Georgia State Prison with an inmate who
attempted to kill Plaintiff with a shank. When the attempt to kill him failed, Plaintiff was placed
in a cell containing a toilet full of toxic feces. (Id.) Plaintiff also states he has been placed in the
mental health unit while housed in Augusta State Medical Prison, yet he does not suffer from
mental health issues. In his Amended Complaint and his Motions to Amend, Plaintiff sets forth
many of the same allegations as he did in his original Complaint, although he does name
individually-named entities as Defendants. (Docs. 10, 11, 14.)

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STANDARD OF REVIEW
Plaintiff seeks to bring this action in forma pauperis. 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, 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).
The Court looks to the instructions for pleading contained in the Federal Rules of Civil
Procedure when reviewing a Complaint on an application to proceed in forma pauperis. 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

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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 . . . .”) (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.”).
DISCUSSION
I.

Dismissal for Failure to Follow this Court’s Orders
The Court advised Plaintiff that his Complaint failed to state a claim upon which relief

could be granted. The Court noted Plaintiff’s factual allegations but warned him that he did not
name an entity amenable to suit and that his claims were unrelated to each other. (Doc. 8,

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pp. 6–7.) The Court advised Plaintiff that he should submit an Amended Complaint that “set[s]
forth allegations indicating that his constitutional rights have been violated and by whom his
rights have been violated.” (Id.) While Plaintiff filed an Amended Complaint, as explained
below, he failed to explain how the entities named in his Amended Complaint violated his rights
or are “persons” subject to suit pursuant to Section 1983.

The Court forewarned Plaintiff that,

if he did not file an Amended Complaint which complied with the Court’s instructions, the Court
could dismiss his Complaint for failure to follow the Court’s Order. (Id. at p. 7.) However,
Plaintiff ignored the Court’s instructions and failed to file an appropriate Amended Complaint.
A district court may dismiss a plaintiff’s claims sua sponte pursuant to either Federal
Rule of Civil Procedure 41(b) (“Rule 41(b)”) or the court’s inherent authority to manage its
docket. Link v. Wabash R.R. Co., 370 U.S. 626 (1962); Coleman v. St. Lucie Cty. Jail, 433 F.
App’x 716, 718 (11th Cir. 2011) (citing Fed. R. Civ. P. 41(b) and Betty K Agencies, Ltd. v. M/V
MONADA, 432 F.3d 1333, 1337 (11th Cir. 2005)). In particular, Rule 41(b) allows for the
involuntary dismissal of a plaintiff’s claims where he has failed to prosecute those claims,
comply with the Federal Rules of Civil Procedure or local rules, or follow a court order. Fed. R.
Civ. P. 41(b); see also Coleman, 433 F. App’x at 718; Sanders v. Barrett, No. 05-12660, 2005
WL 2640979, at *1 (11th Cir. Oct. 17, 2005) (citing Kilgo v. Ricks, 983 F.2d 189, 192 (11th Cir.
1993)); cf. Local R. 41.1(b) (“[T]he assigned Judge may, after notice to counsel of record, sua
sponte . . . dismiss any action for want of prosecution, with or without prejudice[,] . . . [based on]
willful disobedience or neglect of any order of the Court.” (emphasis omitted)). Additionally, a
district court’s “power to dismiss is an inherent aspect of its authority to enforce its orders and
ensure prompt disposition of lawsuits.” Brown v. Tallahassee Police Dep’t, 205 F. App’x 802,
802 (11th Cir. 2006) (quoting Jones v. Graham, 709 F.2d 1457, 1458 (11th Cir. 1983)).

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It is true that dismissal with prejudice for failure to follow court orders is a “sanction . . .
applicable only in extreme circumstances” and requires that a court “(1) [make] a clear record of
willful conduct and (2) a finding that lesser sanctions are inadequate.” Baltimore v. Jim Burke
Motors, Auto., 300 F. App'x 703, 707 (11th Cir. 2008) (per curiam) (citing Betty K Agencies,
Ltd., 432 F.3d at 1339 and quoting Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985));
see also McIntosh v. Gauthier, 182 F. App’x 884, 886–87 (11th Cir. 2006) (same) (citing
McKelvey v. AT&T Techs., Inc., 789 F.2d 1518, 1520 (11th Cir. 1986)). By contrast, dismissal
without prejudice for failure to follow a court order is not an adjudication on the merits, and,
therefore, courts are afforded greater discretion in dismissing claims in this manner. See Taylor
v. Spaziano, 251 F. App’x 616, 619 (11th Cir. 2007); see also Fed. R. Civ. P. 41(b) (providing
that an involuntary dismissal for failure to comply with a court order is an adjudication on the
merits, unless the district court “states otherwise”); Brown, 205 F. App’x at 802 (noting that
dismissal without prejudice under Rule 41(b) is generally not an abuse of discretion).
While the Court exercises its discretion to dismiss cases with caution, dismissal of this
action without prejudice is warranted. See Coleman, 433 F. App’x at 719 (upholding dismissal
without prejudice for failure to prosecute Section 1983 complaint, where plaintiff did not
respond to court order to supply defendant’s current address for purpose of service); Taylor, 251
F. App’x at 620–21 (upholding dismissal without prejudice for failure to prosecute, because
plaintiffs insisted on going forward with deficient amended complaint rather than complying, or
seeking an extension of time to comply, with court’s order to file second amended complaint);
Brown, 205 F. App’x at 802–03 (upholding dismissal without prejudice 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 dismissal).

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Plaintiff did not comply with this Court’s Order and file an appropriate Amended
Complaint. Consequently, the Court should DISMISS Plaintiff’s Complaint for failure to follow
this Court’s Order. See id.
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 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). 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.

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A certificate of appealability is not required in this Section 1983 action.
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CONCLUSION
For the foregoing reasons, the Court DENIES Plaintiff’s Motions for Leave to Proceed in
Forma Pauperis, (docs. 3, 9). For purposes of the Court’s frivolity review, the Court GRANTS
Plaintiff’s Motions to Amend his Complaint, (docs. 11, 14). The Court also DENIES Plaintiff’s
Motion to Appoint Counsel, (doc. 11), and DISMISSES as moot Plaintiff’s Motions for
Documents, (docs. 18, 20). For these same reasons, I RECOMMEND the Court DISMISS
without prejudice Plaintiff’s Complaint, as amended, based on his failure to follow this Court’s
Order, DISMISS as moot the remaining Motions for Protective Order, (docs. 11, 17), and
DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of
dismissal. Additionally, I RECOMMEND the Court 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.
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

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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 2nd day of January,
2018.

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

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