Pender v. Burrows et al

Filing 3

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS without prejudice Plaintiff's 1 Complaint, and DIRECT the Clerk of Court to CLOSE this case. It is further RECOMMENDED that the Court DENY Plaintiff in forma pauperis status on appeal. 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 6/29/2017). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 6/15/2017. (csr)

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

CORNELIUS PENDER,
Plaintiff,

CIVIL ACTION NO.: 5:17-cv-71

v.
B. BURROWS, Detention Officer; CAPTAIN
DANNY CHRISTMAS; MEDICAL STAFF,
WARE COUNTY JAIL; and SHERIFF OF
WARE COUNTY,
Defendants.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, an inmate at Smith State Prison in Glennville, Georgia, brought this suit
contesting certain conditions of his confinement while detained at Ware County Jail in
Waycross, Georgia, pursuant to 42 U.S.C. § 1983. (Doc. 1.) For the reasons which follow, the
Court DENIES Plaintiff’s Motion for Leave to Proceed in Forma Pauperis.

(Doc. 2.)

Additionally, I RECOMMEND that the Court DISMISS without prejudice Plaintiff’s
Complaint, (doc. 1), and DIRECT the Clerk of Court to CLOSE this case.

I also

RECOMMEND that the Court DENY Plaintiff in forma pauperis status on appeal.
BACKGROUND
Plaintiff filed a Complaint on May 30, 2017, alleging that Defendants used excessive
force against him and then failed to provide him medical care for his injuries. (Doc. 1, p. 5.)
Plaintiff requests as relief $500,000 in damages, termination of Defendants’ employment at Ware
County Jail, and a verbal apology from Defendant Burrows. (Id. at p. 6.)

STANDARD OF REVIEW
Plaintiff seeks to bring this action in forma pauperis and pursuant to 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

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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.”).

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DISCUSSION
I.

Dismissal for Abuse of Judicial Process
As noted above, Plaintiff has moved to proceed in forma pauperis in this action. The

form Complaint filed by Plaintiff directly asked whether Plaintiff had filed “any lawsuits in
federal court which deal with facts other than those involved in this action” and directed Plaintiff
to describe any additional lawsuits. (Doc. 1, p. 2.) In response, Plaintiff indicated that he had
filed no other lawsuits in federal court and left the eight follow-up questions blank. (Id. at pp. 2–
3.) The form Complaint also asked Plaintiff whether “any lawsuit . . . in which [he was] allowed
to proceed in forma pauperis” was “dismissed on the ground that it was frivolous, malicious, or
failed to state a claim.” (Id. at p. 3.) Plaintiff again responded that he had filed no such lawsuits.
(Id.) Despite Plaintiff’s assertions to the contrary, the case management system shows that
Plaintiff has brought at least one additional lawsuit in federal court while he was incarcerated or
detained prior to filing this action: Compl., Pender v. Ware County Jail, et al., 5:06-cv-86 (S.D.
Ga. Oct. 11, 2006), ECF No. 1. Moreover, the Court dismissed Plaintiff’s claims against Ware
County Jail in Case Number 5:06-cv-86 for failure to state a claim. Order, Pender v. Ware
County Jail, et al., 5:06-cv-86 (S.D. Ga. Apr. 18, 2007), ECF No. 21.
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

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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.
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.”).

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Another district court in this Circuit explained the importance of an inmate’s prior
litigation disclosures 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
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).
As Plaintiff filed at least one other lawsuit while detained, he falsified his litigation
history in his Complaint by failing to disclose that lawsuit. The plain language of the Complaint
form is clear—first asking Plaintiff whether he has ever filed other lawsuits in state or federal
court dealing with the same facts involved in this action, (doc. 1, p. 1), then asking whether
Plaintiff, while incarcerated or detained, has ever filed other lawsuits in state or federal court
otherwise relating to the conditions of his imprisonment, (id. at p. 2), and finally asking Plaintiff
whether any previously-filed lawsuits were dismissed for being frivolous, malicious, or failing to
state a claim, (id. at p. 3). Plaintiff not only failed to disclose that he has filed another lawsuit in
federal court while incarcerated or detained but also failed to disclose the dismissal of his claims
for failure to state a claim. Accordingly, Plaintiff falsified his litigation history on two separate
portions of the Complaint form submitted to this Court. Regardless of the outcome of Plaintiff’s
prior lawsuit, his initiation of those lawsuits is the precise type of activity for which these
prompts require disclosure.

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Plaintiff failed to fully disclose the existence and disposition of his prior lawsuits, and his
blatant dishonesty before this Court and disregard of his duty of candor cannot be excused.
Consequently, the Court DENIES Plaintiff’s Motion to Proceed in Forma Pauperis for failure to
truthfully disclose his litigation history. Additionally, the Court should DISMISS this action
without prejudice 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 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
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).

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A certificate of appealability is not required in this Section 1983 action.
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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
in forma pauperis status on appeal.
CONCLUSION
Based on the foregoing, the Court DENIES Plaintiff’s Motion to Proceed in Forma
Pauperis.

(Doc. 2.)

Additionally, I RECOMMEND that the Court DISMISS without

prejudice Plaintiff’s Complaint, filed pursuant to 42 U.S.C. § 1983, and DIRECT the Clerk of
Court to CLOSE this case. I also RECOMMEND that the Court DENY Plaintiff in forma
pauperis status on appeal.
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
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

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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 15th day of June,
2017.

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

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