Shaw v. State of Georgia et al
Filing
65
REPORT AND RECOMMENDATIONS of the Magistrate Judge that Defendants' 43 MOTION to Dismiss be GRANTED. I also RECOMMEND Plaintiff's 53 Amended Complaint, be DISMISSED, without prejudice, based on Plaintiff's failure to exhaust hi s administrative remedies prior to the filing of his Complaint. I further RECOMMEND that Defendants' first 28 MOTION to Dismiss, be DISMISSED AS MOOT and that Plaintiff be DENIED leave to appeal in forma pauperis. Any party seeking to object t o 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. ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. ( Objections to R&R due by 8/13/2015). Signed by Magistrate Judge R. Stan Baker on 7/27/2015. (ca)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION
DEXTER SHAW,
Plaintiff,
CIVIL ACTION NO.: 6:14-cv-48
v.
ROBERT TOOLE; DEPUTY WARDEN
JOHN PAUL; and MILTON SMITH,
Defendants.
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, who is currently housed at Valdosta State Prison in Valdosta, Georgia, filed a
cause of action, as amended, pursuant to 42 U.S.C. § 1983 and the Religious Land Use and
Institutionalized Persons Act, 42 U.S.C. §§ 2000cc, et seq., contesting certain conditions of his
confinement while he was housed at Georgia State Prison in Reidsville, Georgia. (Docs. 1, 10,
22.) Defendants Robert Toole, John Paul, and Milton Smith (“Defendants”) filed a Second
Motion to Dismiss. (Doc. 43.) Plaintiff filed a Response, (doc. 57), and Defendants filed a
Reply.
(Doc. 62.)
Plaintiff filed a Surreply.
(Doc. 63.)
For the reasons which follow,
Defendants’ Motion should be GRANTED, and Plaintiff’s Complaint should be DISMISSED,
without prejudice. Based on the undersigned’s recommended disposition of Defendants’ Second
Motion to Dismiss, Plaintiff’s Motions to Amend/Correct, (docs. 33, 35), Motion for Leave to
File, (doc. 41), Motion for Extension of Time, (doc. 42), Motion for Defendants to Respond to
his Complaint, (doc. 50), and his Motion to Appoint Counsel, (doc. 54), are DISMISSED as
moot. In addition, Defendants’ first Motion to Dismiss, (doc. 28), also should be DISMISSED
as moot. Finally, Plaintiff should be DENIED leave to appeal in forma pauperis.
BACKGROUND 1
Plaintiff asserts he is a Suma Muslim who adheres to Islam and its teachings, including
following the dietary prohibitions against eating chicken and other meats and meat byproducts.
(Doc. 10, p. 2.) Plaintiff states he signed up in 2009 to receive vegan meals through the Georgia
Department of Corrections’ Alternative Entrée Program based on his sincerely held religious
beliefs, and the “religious authorities” approved his placement in the program. (Id. at p. 3.)
Plaintiff asserts he was transferred to Georgia State Prison on March 13, 2014, and he
immediately wrote Defendant Toole, the warden, to inform him of his (Plaintiff’s) vegan diet
requirement. (Id.) According to Plaintiff, Defendant Toole failed to respond. Plaintiff states he
was forced to eat around the meat and meat byproducts on his trays, which resulted in him being
able to eat very little food, such as a spoonful of vegetables or an occasional piece of fruit. (Id.)
Plaintiff maintains he lost a significant amount of weight and became violently ill. (Id.)
Nevertheless, Plaintiff contends, prison officials ignored his need for adequate nutrition
and his required diet. In particular, Plaintiff asserts Defendant Paul informed him Georgia State
Prison did not participate in the Alternative Entrée Program, so Plaintiff would have to “eat
around the foods [he] cannot eat.” (Id.) Plaintiff also asserts he filed a grievance on March 27,
2014, and alleged he was being denied adequate nutrition and his required vegan meals.
However, Plaintiff maintains, he learned a month later that the grievance coordinator (Defendant
Smith) destroyed this grievance in an attempt to conceal the nature of Plaintiff’s grievance and
so “the state and it’s (sic) agents could allow serious physical injuries to come to me as a form of
1
The recited allegations are taken from Plaintiff’s Complaint, as amended, and are viewed, as they must
be at this stage, in the light most favorable to Plaintiff.
2
widespread retribution.” (Id. at p. 4; Doc. 22-1, p. 1.) Plaintiff avers he had become visibly
weaker and smaller due to his weight loss, and officers suggested he go to the commissary to
“maintain.” (Doc. 10, p. 4.) Plaintiff also avers he “properly” filed another grievance on
April 29, 2014, and stated that his previous grievance had been destroyed in an attempt to
conceal the denial of adequate nutrition. (Id.)
Plaintiff maintains he spoke to Defendant Toole again during inspection about the denial
of adequate nutrition and that Defendant Toole told him Georgia State Prison did not offer vegan
meals, but officials were looking into doing so. (Id.) According to Plaintiff, he explained to
Defendant Toole that he should not have to wait for the future to receive his vegan diet. (Id.)
Plaintiff also states stickers identifying him and his vegan meal requirement were placed on his
trays, even though the prison did not provide vegan meals, “[a]s a malicious tactic to conceal
facts and a mockery towards my religious exercise.” (Id.)
Plaintiff contends he began refusing to accept any trays because of the presence of meat,
in violation of his religious requirements, on May 8, 2014. (Id. at p. 5.) Plaintiff states the door
charts, which officers are required to sign every 30 minutes, noted he was on a hunger strike.
Plaintiff also states the established procedures required him to be seen by medical personnel on a
daily basis after he missed nine (9) meals. (Id.) Plaintiff maintains the State ordered “it’s (sic)
agents not to have me medically seen or treated[ ]” due to “ill intent to cause and allow
irreparable harms[.]” (Id.)
Plaintiff alleges he had surgery on his right shoulder on May 15, 2014, which involved
detaching his bicep and tendon and reattachment in a different place, the cleaning of his rotator
cuff, and the shaving of a bone in his shoulder. (Id.) Plaintiff maintains he had to be taken to the
medical unit that night because his incision site would not stop bleeding. Plaintiff states the
3
nurse cautioned him he had to eat in order to heal. (Id.) Plaintiff also states Dr. Steve Nicolou
examined him the following day and explained to Plaintiff the importance of protein in the
healing process. (Id.) Plaintiff asserts he informed Dr. Nicolou of his religious precepts, and Dr.
Nicolou told him he could not make a medical order to change Plaintiff’s diet because his
religious precepts did not present a medical issue. Dr. Nicolou encouraged Plaintiff to eat
because failing to do so would prevent healing and could expose Plaintiff to bacteria and
infections. (Id. at p. 6.) Plaintiff states he still refused to eat the prohibited foods he was
provided over the course of the following two to three (2–3) weeks’ time, and he had lost 25
pounds from the time he arrived at Georgia State Prison.
Plaintiff contends he went to the medical unit on June 6, 2014, to have his bandage
changed, and the nurse noticed the surgical wound was swollen and excessively bleeding. (Id.)
Plaintiff maintains Dr. Nicolou explained his surgical wound was not going to heal if he did not
eat. Plaintiff asserts Dr. Nicolou told him to accept the trays so that he could be medically
treated for a lack of protein and nutrients, which Dr. Nicolou could not do if Plaintiff continued
with his hunger strike. (Id.) Plaintiff asserts he agreed to accept the trays, but he still did not eat
the prohibited items, even though his liver and other organs were deteriorating. (Id. at p. 7.)
Plaintiff also asserts Dr. Nicolou prescribed a 90-day supply of Ensure to be taken twice a day.
(Id. at p. 6.) Despite having Ensure and any permissible commissary items he was able to get
from another inmate, Plaintiff asserts he was not receiving adequate nutrition. (Id. at p. 7.)
After conducting the requisite frivolity review, Plaintiff’s Complaint, as amended, was
served upon Defendants, in their individual capacities, on the basis of Plaintiff’s allegations that
Defendants violated his right to free exercise of his religion and failed to provide Plaintiff with
nutritionally adequate food, in violation of the Eighth Amendment’s proscription against cruel
4
and unusual punishment. 2 Plaintiff’s Complaint was also served based on Plaintiff’s claims for
injunctive relief under the RLUIPA. (Doc. 30.) Upon review of Plaintiff’s Objections to the
Magistrate Judge’s Report and Recommendation, the Honorable B. Avant Edenfield, inter alia,
dismissed Plaintiff’s RLUIPA claims in their entirety, thus leaving Plaintiff’s constitutional
claims against Defendants in their individual capacities as the remaining claims. (Doc. 49.)
DISCUSSION
Defendants set forth several grounds for dismissal of Plaintiff’s Complaint in their
Motion. First, Defendants aver Plaintiff failed to exhaust his administrative remedies prior to the
filing of his Complaint. Defendants note Plaintiff does not state a claim for relief under the First
Amendment. 3
Defendants also note Plaintiff, as a “three striker” within the meaning of
Section 1915(g), is not entitled to recover damages. (Doc. 43-1.) As set forth below, the
undersigned agrees that Plaintiff failed to exhaust his administrative remedies prior to filing his
Complaint, and his Complaint is due to be dismissed on this ground. Accordingly, the Court
need not address Defendants’ other arguments for dismissal.
2
The Magistrate Judge originally recommended Plaintiff’s Complaint be dismissed outright, without
prejudice, pursuant to 28 U.S.C. § 1915(g) because Plaintiff has at least (3) “strikes” against him (i.e.,
causes of action and/or appeals which were dismissed as being frivolous, malicious, or failing to state a
claim upon which relief may be granted). (Doc. 5.) Plaintiff filed Objections to the Magistrate Judge’s
Report, a Motion to Amend, and an Amended Complaint. The Magistrate Judge granted Plaintiff’s
Motion to Amend, recommended the dismissal of certain claims and Defendants, and directed the service
of Plaintiff’s Complaint, as amended, upon Defendants Toole, Paul, and Smith. (Docs. 11, 18, 20.)
Plaintiff then filed another Motion to Amend. Based on this Motion, the Magistrate Judge: vacated his
previous recommendation; recommended that Plaintiff’s § 1983 claims against the State of Georgia, his
monetary damages claims against the individual Defendants in their official capacities, and his monetary
damages claims under the RLUIPA against Defendants be dismissed; his motions for temporary
restraining order and preliminary injunction be denied; and ordered service of Plaintiff’s Complaint and
the amendments thereto upon Defendants Toole, Paul, Smith, and the State of Georgia. (Docs. 30, 31.)
3
Defendants also move for dismissal of Plaintiff’s injunctive relief claims. (Doc. 43-1, p. 10)
(incorporating their first Motion to Dismiss, doc. 28.) As noted in this Report and in Judge Edenfield’s
Order of April 1, 2015, Plaintiff no longer has any injunctive relief claims pending. (Doc. 49.)
5
I.
Standard of Review
The determination of whether an inmate exhausted his available administrative remedies
prior to filing a cause of action in federal court is a matter of abatement and should be raised in a
motion to dismiss. Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir. 2008). “Because exhaustion
of administrative remedies is a matter in abatement and not generally an adjudication on the
merits, an exhaustion defense . . . is not ordinarily the proper subject for a summary judgment;
instead, it should be raised in a motion to dismiss, or be treated as such if raised in a motion for
summary judgment.” Id. at 1374–75 (internal citation omitted). “Even though a failure-toexhaust defense is non-jurisdictional, it is like” a jurisdictional defense because such a
determination “ordinarily does not deal with the merits” of a particular cause of action. Id.
at 1374 (internal punctuation and citation omitted).
Further, a judge “may resolve factual
questions” in instances where exhaustion of administrative remedies is a defense before the
Court. Id. In these instances, “it is proper for a judge to consider facts outside of the pleadings
and to resolve factual disputes so long as the factual disputes do not decide the merits and the
parties have sufficient opportunity to develop a record.” Id. at 1376.
II.
Exhaustion Analysis
A.
Legal Requirements for Exhaustion
Where Congress explicitly mandates, prisoners seeking relief for alleged constitutional
violations must first exhaust inmate grievance procedures before filing suit in federal court. See
Porter v. Nussle, 534 U.S. 516, 524 (2002). Section 1997e(a) of Title 42 of the United States
Code states, “No action shall be brought with respect to prison conditions under section 1983 of
this title, or any other Federal law . . . until such administrative remedies as are available are
exhausted.”
In Porter, the United States Supreme Court held that exhaustion of available
6
administrative remedies is mandatory. Porter, 534 U.S. at 523. The Supreme Court has noted
exhaustion must be “proper.” Woodford v. Ngo, 541 U.S. 81, 92 (2006). “Proper exhaustion
demands compliance with an agency’s deadlines and other critical procedural rules because no
adjudicative system can function effectively without imposing some orderly structure on the
course of its proceedings.” Id. at 90–91. In other words, an institution’s requirements define
what is considered exhaustion. Jones v. Bock, 549 U.S. 199, 218 (2007).
In Turner v. Burnside, 541 F.3d 1079 (11th Cir. 2008), the Eleventh Circuit clarified how
the lower courts are to examine the issue of exhaustion of administrative remedies. First, the
court is to take the plaintiff’s version of the facts regarding exhaustion as true. Id. at 1082. If,
even under the plaintiff’s version of the facts, the plaintiff has not exhausted, the complaint must
be dismissed. Id. However, if the parties’ conflicting facts leave a dispute as to whether plaintiff
has exhausted, the court need not accept all of plaintiff’s facts as true. Id. Rather, “the court
then proceeds to make specific findings in order to resolve the disputed factual issues[.]” Id.
“Once the court makes findings on the disputed issues of fact, it then decides whether under
those findings the prisoner has exhausted his available administrative remedies.” Id. at 1083.
The Eleventh Circuit has held that a district court may consider materials outside of the
pleadings and resolve factual disputes regarding exhaustion in conjunction with a Rule 12(b)(6)
motion to dismiss so long as the factual disputes do not decide the merits of the case. See
Bryant, 530 F.3d at 1376–77.
The requirement that the exhaustion of remedies occur “first in an agency setting allows
‘the agency [to] develop the necessary factual background upon which decisions should be
based’ and giv[es] ‘the agency a chance to discover and correct its own errors.’” Green v. Sec’y
for Dep’t of Corr., 212 F. App’x 869, 871 (11th Cir. 2006) (quoting Alexander v. Hawk, 159
7
F.3d 1321, 1327 (11th Cir. 1998) (first alteration in original)). “However, ‘while [Section]
1997e(a) requires that a prisoner provide as much relevant information as he reasonably can in
the administrative grievance process, it does not require more.’” Id. (quoting Brown v. Sikes,
212 F.3d 1205, 1207 (11th Cir. 2000)). Nevertheless, the purpose of Section 1997e(a) is not that
“fact-intensive litigation” result over whether every fact relevant to the cause of action was
included in the grievance. Hooks v. Rich, CV605-65, 2006 WL 565909, at *5 (S.D. Ga. Mar. 7,
2006) (internal citation omitted). “‘As long as the basic purposes of exhaustion are fulfilled,
there does not appear to be any reason to require a prisoner plaintiff to present fully developed
legal and factual claims at the administrative level.’” Id. (quoting Irvin v. Zamora, 161 F.
Supp.2d 1125, 1135 (S.D. Cal. 2001)). Rather, Section 1997e(a) is intended to force inmates to
give state prison authorities a chance to correct constitutional violations in their prisons before
resorting to federal suit and to prevent patently frivolous lawsuits. Id.
B.
The Georgia Department of Corrections’ Grievance Procedure
The Georgia Department of Corrections’ grievance procedure is set forth in Standard
Operating Procedure (“SOP”) IIB05-0001. This SOP does not require an inmate to attempt to
informally resolve his complaint before filing a formal grievance. (Doc. No. 43-3, p. 5.) An
inmate can file, with a few exceptions, “a grievance about any condition, policy, procedure, or
action or lack thereof that affects the [inmate] personally.” (Id. at p. 6.) An inmate must submit
a grievance form “no later than 10 calendar days from the date the [inmate] knew, or should have
known, of the facts giving rise to the grievance.” (Id. at p. 8) (emphasis in original.) The
Grievance Coordinator is to screen the grievance to determine whether the warden should accept
the grievance or reject it. (Id.) The warden has a period of forty (40) calendar days from the
date the inmate gave his grievance to the counselor to respond. An extension of ten (10)
8
calendar days can be granted once, provided the inmate is advised in writing of the extension
before the original 40 calendar days have expired. (Id. at pp. 10–11.) An inmate can file an
appeal with the Commissioner’s Office in the following instances: if the grievance coordinator
rejects his original grievance; after the warden responds to the original grievance; or when the
time allowed for the warden’s decision has expired. The inmate has seven (7) calendar days in
which to file this appeal. (Id. at p. 12.) The Commissioner has 100 calendar days after receipt to
render a decision. (Id.) These time limits may be waived for good cause. (Id.)
With these standards and procedures in mind, the Court now addresses Defendants’
argument that Plaintiff did not exhaust his administrative remedies as to his claims against them.
C.
Assessment of Plaintiff’s Exhaustion
Defendants assert Plaintiff’s grievance history reveals he only filed two (2) grievances
while he was housed at Georgia State Prison prior to May 19, 2014, the date he filed his
Complaint with this Court. (Doc. 43-1, p. 9.) Defendants note Plaintiff’s assertion that he filed a
grievance in March 2014 regarding the denial of his vegan meals, but they also note there is no
record of this filing. Rather, Defendants state the evidence shows Plaintiff filed a grievance in
April 2014, which was not resolved by the time Plaintiff filed his Complaint. (Id. at p. 10.)
In response, Plaintiff asserts he filed a grievance on March 18, 2014, regarding the denial
of his vegan meals. Plaintiff also asserts he filed another grievance on March 27, 2014, and
asserted he was being denied adequate nutrition. (Doc. 57, p. 4.) Nevertheless, Plaintiff notes,
these two (2) grievances are not reflected in his grievance history. Plaintiff contends he filed
another grievance, Grievance Number 173334, regarding the destruction of his March 27, 2014,
grievance. (Id.) Plaintiff maintains Defendants have acted in contravention to the applicable
SOP and are denying the issuance of receipts for grievances “to deliberately deny access to the
9
[grievance] procedure[.]” (Id.) Plaintiff states this practice is designed to destroy grievances and
cover-up facts, while threatening to deny access to the courts.” (Id. at pp. 4–5.) According to
Plaintiff, Defendants’ records lack reliability and trustworthiness. (Id. at pp. 5–6.)
Defendants counter that Plaintiff’s assertions lack merit. While Defendants note Plaintiff
correctly asserts his emergency grievance is not reflected in his grievance history, Defendants
state this grievance did not meet the criteria for an emergency grievance. Because of this,
Defendants aver, the grievance was returned to him for resubmission as a regular grievance,
which Plaintiff failed to do. (Doc. 62, p. 5.) Defendants maintain the evidence they presented
clearly shows Plaintiff failed to exhaust his administrative remedies prior to filing his Complaint.
(Id.)
Plaintiff reiterates he filed grievances on March 18 and 27, 2014, and these grievances
were filed according to the applicable SOP. Plaintiff asserts these grievances were not returned
to him, contrary to Defendants’ assertion. (Doc. 63, p. 2.)
Accepting Plaintiff’s version of facts as true, there remains a question of whether Plaintiff
exhausted his administrative remedies prior to the filing of his Complaint. Thus, the Court
resolves this question by assessing the evidence the parties submitted in support of their
respective positions. Turner, 541 F.3d at 1083.
The Court notes Plaintiff submitted a copy of a grievance bearing the date of March 18,
2014, in which he alleges his religious practices have been infringed because he has been housed
where his required diet is not prepared. Plaintiff wrote “Emergency Grievance” across the top of
this document. (Doc. 57, p. 22.) Plaintiff described events in this grievance which allegedly
occurred during the weekend preceding the filing of this “emergency grievance” (March 14th
through 16th). (Id. at p. 23.) Defendant Smith declared the contents of this grievance do not
10
meet the definition of an emergency, so this grievance would have been returned to Plaintiff so
he could file this as an original grievance. 4 (Doc. 62-1, p. 3.)
An “emergency grievance” is defined under the SOP as: “An unexpected situation
involving a significant threat to the health, safety[,] or welfare of an offender that requires
prompt action.” (Doc. 43-3, p. 3.) Grievances of this nature are to be immediately referred to
the Grievance Coordinator. (Id. at p. 13.) If the Grievance Coordinator determines the grievance
does not fit the definition of “emergency grievance”, the grievance will be returned to the
inmate, who “has 7 calendar days from receipt to file it as an Original Grievance.” (Id.)
It appears there is no record of this grievance in Plaintiff’s grievance history because this
grievance was not actually filed. The reason this grievance was not filed was because it did not
fit the definition of “emergency grievance” in Defendant Smith’s (the Grievance Coordinator)
estimation. The Court recognizes Defendants’ assertion that there is no record that Plaintiff
resubmitted an original grievance relating to the issues contained in this emergency grievance.
(Doc. 62-1, p. 3.) To be sure, there is nothing concrete before the Court—other than Plaintiff’s
own contentions—that he filed a grievance on March 27, 2014, and Plaintiff has been steadfast
in his claim that his March 27, 2014, grievance was destroyed. (See, e.g., Doc. 1, p. 5.)
However, the Court does not find this distinct contention—that the grievance dated March 27,
2014, was destroyed as an effort to hamper Plaintiff’s access to the grievance procedure and to
conceal Defendants’ actions— to be meritorious.
By Plaintiff’s version, the reputed March 27, 2014, grievance was destroyed in an attempt
to cover up Defendants’ actions and to deny him access to the grievance process. (Doc. 57,
pp. 4–5.) But, the evidence before the Court belies Plaintiff’s version of events as to the
grievance process and its availability to Plaintiff. According to his grievance history printout,
4
SOP IIB05-0001 refers to a formal grievance as an “original grievance”. (Doc. 43-3, p. 8.)
11
Plaintiff was able to file five (5) grievances while he was housed at Georgia State Prison. (Doc.
43-4, p. 2.) This history of grievance filing negates Plaintiff’s argument that he was denied
access to the grievance process. Furthermore, the fact that Defendants kept and are able to
produce records evidencing the many grievances Plaintiff filed contradicts his contention that
Defendants destroyed documents to cover up his grievance filings.
Of import here, Defendants’ records reveal that Plaintiff filed Grievance Number 173334
on April 29, 2014, (id.), in which he stated he filed a grievance on March 27, 2014, and alleged
in that grievance he was denied his religious diet. (Doc. 57, p. 12.) The Warden denied
Plaintiff’s April 29, 2014, grievance on July 21, 2014, and Plaintiff received the denial on July
28, 2014. (Id. at p. 14.) Plaintiff appealed the Warden’s denial, and his appeal was likewise
denied on August 26, 2014. 5 (Id. at p. 15.)
Plaintiff filed his grievance on April 29, 2014, and he filed his Complaint on May 19,
2014, months before that grievance was resolved. (Doc. 1.) It is apparent Plaintiff did not
exhaust his administrative remedies prior to filing his cause of action. Plaintiff was required to
await the Warden’s response or for the time to receive a response to elapse before he had to file
any appeal, which would have occurred after May 19, 2014.
For these reasons, this portion of Defendants’ Motion to Dismiss should be GRANTED,
and Plaintiff’s Complaint, as amended, should be DISMISSED, without prejudice. As a result,
it is unnecessary to address the remaining portion of Defendants’ Motion.
5
The Appeal Response form does not indicate on what date Plaintiff received the final decision on
Grievance Number 173334, but the decision is dated August 26, 2014. (Doc. 57, p. 15.) However,
according to Plaintiff’s grievance history, the status of his appeal was listed as “denied” and lists
September 17, 2014, as the date of that denial. (Doc. 43-4, p. 2.) The undersigned can only presume this
is the date Plaintiff received notification of the denial of his grievance on appeal. Whether Plaintiff’s
appeal was denied on August 26 or September 17, 2014, is of no moment, as both dates post-date the
filing of Plaintiff’s Complaint in this Court.
12
III.
Leave to Appeal In Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. 6
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. See Fed. R. App. R. 24(a)(1)(A) (“A party who was
permitted to proceed in forma pauperis in the district-court action, . . ., may proceed on appeal in
forma pauperis without further authorization, unless the district court—before or after the notice
of appeal is filed—certifies that the appeal is not taken in good faith[.]”). An appeal cannot be
taken in forma pauperis if the trial court certifies, either before or after the notice of appeal is
filed, that the appeal is not taken in good faith. 28 U.S.C. § 1915(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).
Based on the above analysis of Defendants’ Motion to Dismiss, Plaintiff’s potential in
forma pauperis status on appeal should be DENIED, as there are no non-frivolous issues to raise
on appeal, and any appeal would not be taken in good faith.
6
A Certificate of Appealability (“COA”) is not required to file an appeal in a Section 1983 action. See
Fed. R. App. P. 3 & 4; Morefield v. Smith, No. 607CV010, 2007 WL 1893677, at *1 (S.D. Ga. July 2,
2007) (citing Mathis v. Smith, No. 05-13123-A (11th Cir. Aug. 29, 2005) (unpublished)).
13
CONCLUSION
Based on the foregoing, it is my RECOMMENDATION that Defendants’ Second
Motion to Dismiss, (doc. 43), be GRANTED. I also RECOMMEND Plaintiff’s Complaint, as
amended, be DISMISSED, without prejudice, based on Plaintiff’s failure to exhaust his
administrative remedies prior to the filing of his Complaint. I further RECOMMEND that
Defendants’ first Motion to Dismiss, (doc. 28), be DISMISSED AS MOOT and that Plaintiff be
DENIED leave to appeal in forma pauperis. Plaintiff’s Motions to Amend/Correct, (docs. 33,
35), Motion for Leave to File, (doc. 41), Motion for Extension of Time, (doc. 42), Motion for
Defendants to Respond to his Complaint, (doc. 50), and his Motion to Appoint Counsel,
(doc. 54), are DISMISSED AS MOOT.
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. 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.
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. The
14
Clerk of Court is DIRECTED to serve a copy of this Report and Recommendation upon the
parties.
SO ORDERED and REPORTED and RECOMMENDED, this 27th day of July, 2015.
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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