Davenport v. Hall et al

Filing 4

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS this action for failure to state a claim and DENY Plaintiff leave to proceed in forma pauperis on appeal re 1 Complaint filed by Gregory Allen Davenport. The Court ORDERS an y 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 8/22/2017). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 8/8/2017. (ca)

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

GREGORY ALLEN DAVENPORT,
Plaintiff,

CIVIL ACTION NO.: 5:17-cv-92

v.
WARDEN HILTON HALL; DEWAYNE H.
GILLIS; and CHRISTOPHER M. CARR,
Defendants.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, an inmate currently housed at Coffee Correctional Facility in Nicholls, Georgia,
filed this Complaint pursuant to 42 U.S.C. § 1983 contesting certain conditions of his
confinement. (Doc. 1.) Additionally, Plaintiff filed a Motion to Proceed in Forma Pauperis.
(Doc. 2.) For the reasons set forth below, Plaintiff fails to set forth a claim upon which relief
may be granted. Consequently, the Court DENIES Plaintiff’s Motion to Proceed in Forma
Pauperis. (Doc. 2.) Furthermore, I RECOMMEND that the Court DISMISS this action for
failure to state a claim and DENY Plaintiff leave to proceed in forma pauperis on appeal.
BACKGROUND
Plaintiff, an inmate at Coffee Correctional Facility, alleges that Defendants “are in
violation of the ‘FSIA’ by detaining and/or conspiring to further the detention of Plaintiff.”1
(Doc. 1, p. 5.) Plaintiff states that “[d]efendants lack subject matter jurisdiction, as plaintiff is
pleading absolute immunity[.]” Plaintiff further states “[d]efendants have no jurisdiction within
the state land. . . . [and] have failed to, after numerous requests from plaintiff, to provide an
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It appears Plaintiff is referencing the Foreign Sovereign Immunities Act, 28 U.S.C. § 1330, which
governs actions brought in courts of the United States against foreign states.

existing contract, proof of ratification of commencement, or any sworn affidavits or paperwork
that would provide validity to any assessments of proof of claims against plaintiff. Plaintiff
denies any contract exists.” (Id.) Plaintiff then lists twelve statutes and claims Defendants have
accused him of violating those statutes. (Id.) Plaintiff provides no further detail of any facts
underlying his claims.
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 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, 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, 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

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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)).
DISCUSSION
I.

Claims Under the Foreign Sovereign Immunities Act
In order to state a claim for relief under Section 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.
Here, Plaintiff alleges Defendants have violated his rights under the Foreign Sovereign
Immunities Act (“FSIA”). This statute governs the process by which a foreign sovereign nation

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may be sued in the United States. Plaintiff is not a foreign sovereign nation, and he has failed to
plausibly allege how Defendants have denied him of any right, privilege, or immunity secured by
the FSIA. Any claims Plaintiff attempts to bring under this statute are, therefore, frivolous.
Accordingly, I RECOMMEND that the Court DISMISS Plaintiff’s Complaint for failure to
state a claim upon which relief may be granted.
II.

Leave to Appeal in Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. 2 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
For the reasons set forth above, the Court DENIES Plaintiff’s Motion to Proceed in
Forma Pauperis. (Doc. 2.) Additionally, I RECOMMEND that the Court DISMISS this action
for failure to state a claim and DENY Plaintiff leave to proceed in forma pauperis 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
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final

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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, this 8th day of August, 2017.

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

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