Ates v. Adams

Filing 9

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Plaintiff's 1 Complaint, without prejudice, DENY AS MOOT Plaintiff's 3 MOTION for Preliminary Injunction, and DENY Plaintiff leave to appeal in forma pauperis. Any party seeking to object to this Report and Recommendation to file specific written objections within fourteen (14) days of the date on which Report and Recommendation is entered (Objections to R&R due by 1/26/2016). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 1/12/2016. (ca)

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

CASEY ATES,
Plaintiff,

CIVIL ACTION NO.: 6:15-cv-100

v.
ROBERT ADAMS,
Defendant.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff filed this action while an inmate at Jenkins Correctional Center in Millen,
Georgia. (Doc. 1.) A prisoner proceeding in a civil action against officers or employees of
government entities must comply with the mandates of the Prison Litigation Reform Act
(“PLRA”), 28 U.S.C. § 1915. After review, the Court VACATES its September 25, 2015 Order,
(doc. 4), and DENIES Plaintiff’s Motion to Proceed In Forma Pauperis, (doc. 2.).

I

RECOMMEND that the Court DISMISS Plaintiff’s Complaint, without prejudice, pursuant
to 28 U.S.C. § 1915(g), and DENY AS MOOT his Motion for a Preliminary Injunction,
(doc. 3). 1 I further RECOMMEND that the Court DENY Plaintiff in forma pauperis status on
appeal.

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A “district court can only dismiss an action on its own motion as long as the procedure employed is fair.
. . . To employ fair procedure, a district court must generally provide the plaintiff with notice of its intent
to dismiss or an opportunity to respond.” Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1336 (11th Cir. 2011)
(citations and internal quotations marks omitted). A Magistrate Judge’s Report and Recommendation
(“R&R”) provides such notice and opportunity to respond. See Shivers v. Int’l Bhd. of Elec. Workers
Local Union, 349, 262 F. App’x 121, 125, 127 (11th Cir. 2008) (indicating that a party has notice of a
district court’s intent to sua sponte grant summary judgment where a magistrate judge issues a report
recommending the sua sponte granting of summary judgment); Anderson v. Dunbar Armored, Inc., 678 F.
Supp. 2d 1280, 1296 (N.D. Ga. 2009) (noting that R&R served as notice that claims would be sua sponte
dismissed). This Report and Recommendation constitutes fair notice to Plaintiff that his suit is barred and

PLAINTIFF’S ALLEGATIONS
When filing his Complaint, Plaintiff used a form entitled “Petition for Mandamus.”
(Doc. 1.) However, it appears that he seeks to assert claims for violation of his constitutional
rights under Section 1983. Id. Plaintiff asserts that he possesses certain rights, including the
rights to access the law and legal process, and he asks that the Court require Defendant, the
Warden of Jenkins Correctional, to allow him to exercise those rights. Id. However, Plaintiff
provides no facts whatsoever in support of his Complaint.
Defendant supposedly violated his rights.

Id.

Id.

He does not allege how

Plaintiff filed an Amended Complaint on

October 19, 2015. (Doc. 7.) However, this filing also only makes conclusory requests, such as
asking that Defendant “stop tampering with legal mail” and stop denying access to a law library.
Id. Again, Plaintiff provides no facts in support of his claims. Id. Plaintiff also filed a Motion
for a Preliminary Injunction or Temporary Restraining Order that is equally bereft of any factual
allegations and seeks similar relief as his Complaint regarding the access to courts. (Doc. 3.)
DISCUSSION
I.

Section 1915(g)
28 U.S.C. § 1915(g) of the PLRA provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a
civil action or proceeding under this section if the prisoner has, on 3 or
more prior occasions, while incarcerated or detained in any facility,
brought an action or appeal in a court of the United States that was
dismissed on the grounds that it is frivolous, malicious, or fails to state a
claim upon which relief may be granted, unless the prisoner is under
imminent danger of serious physical injury.

due to be dismissed. As indicated below, Plaintiff will have the opportunity to present his objections to
this finding, and the District Court will review de novo properly submitted objections. See 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 72; see also Glover v. Williams, No. 1:12-CV-3562-TWT-JFK, 2012 WL
5930633, at *1 (N.D. Ga. Oct. 18, 2012) (explaining that magistrate judge’s report and recommendation
constituted adequate notice and petitioner’s opportunity to file objections provided a reasonable
opportunity to respond).

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28 U.S.C. § 1915(g). Furthermore, dismissals for providing false filing-history information and
failing to comply with court orders both fall under the category of “abuse of the judicial
process,” which the Eleventh Circuit has held to be a “strike-worthy” form of dismissal under
§ 1915(g). See Rivera v. Allin, 144 F.3d 719, 723 (11th Cir. 1998); Malautea v. Suzuki Motor
Co., 987 F.2d 1536, 1544 (11th Cir. 1993) (characterizing failure to comply with court orders as
“abuse of the judicial process”). Section 1915(g) “requires frequent filer prisoners to prepay the
entire filing fee before federal courts may consider their lawsuits and appeals.” Rivera, 144 F.3d
at 731. The Eleventh Circuit upheld the constitutionality of Section 1915(g) in Rivera. In so
doing, the Court concluded that Section 1915(g) does not violate an inmate’s rights to access to
the courts, to due process of law, or to equal protection, or the doctrine of separation of powers.
Rivera, 144 F.3d at 721–27.
The Eleventh Circuit has held that a prisoner barred from proceeding IFP due to the
“three strikes” provision in § 1915(g) must pay the complete $350 filing fee when he initiates
suit. Vanderberg v. Donaldson, 259 F.3d 1321, 1324 (11th Cir. 2001). Therefore, the proper
procedure for a district court faced with a prisoner who seeks IFP status but is barred by the
“three strikes” provision is to dismiss the complaint without prejudice. Dupree v. Palmer, 284
F.3d 1234, 1236 (11th Cir. 2002).
A review of Plaintiff’s history of filings reveals that he has brought at least three civil
actions or appeals which were dismissed and count as strikes under Section 1915(g): See Order,
Ates v. Lancaster, No. 5:15-cv-55 (M.D. Ga. April 6, 2015), ECF No. 5 (dismissing Plaintiff’s
mandamus petition for failure to state a claim); Order, Ates v. Arnold, 5:15-cv-21 (M.D. Ga.
Feb. 13, 2015); ECF No. 8 (dismissing Plaintiff’s complaint for failure to state a claim); Order,
Ates v. Bibb Cty., 5:12-cv-471 (M.D. Ga. Jan. 11, 2013), ECF No. 7 (dismissing Plaintiff’s

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petition for failure to state a claim); Order, Ates v. Arnold, 5:11-cv-403 (M.D. Ga. July 30,
2012), ECF No. 45 (dismissing Plaintiff’s complaint for failure to exhaust administrative
remedies). 2 Because Plaintiff has filed at least three previously dismissed cases or appeals which
qualify as strikes under Section 1915(g), Plaintiff may not proceed in forma pauperis in this
action unless he can demonstrate that he meets the “imminent danger of serious physical injury”
exception to Section 1915(g).
“In order to come within the imminent danger exception, the Eleventh Circuit requires
‘specific allegations of present imminent danger that may result in serious physical harm.’”
Odum v. Bryan Cty. Judicial Circuit, No. CV407-181, 2008 WL 766661, at *1 (S.D. Ga.
Mar. 20, 2008) (quoting Skillern v. Jackson, No. CV606-49, 2006 WL 1687752, at *2 (S.D. Ga.
June 14, 2006) (citing Brown v. Johnson, 387 F.3d 1344, 1349 (11th Cir. 2004))). General and
conclusory allegations not grounded in specific facts indicating that injury is imminent cannot
invoke the Section 1915(g) exception.

Margiotti v. Nichols, No. CV306-113, 2006 WL

1174350, at *2 (N.D. Fla. May 2, 2006). “Additionally, ‘it is clear that a prisoner cannot create
2

As noted above, the form Plaintiff used to file this action is titled “Petition for Mandamus.” However,
this case is properly construed as a Section 1983 action. Additionally, two of Plaintiff’s cases that count
as strikes under Section 1915(g) were ostensibly filed as mandamus petitions. However, “[p]etitions for
Mandamus against either federal officials or against state officials qualify as ‘civil actions’ under 28
U.S.C. § 1915(g).” Bure v. Miami-Dade Cty. Corr. & Rehab. Dep’t, No. 08-23331-CIV, 2009 WL
35238, at *4 (S.D. Fla. Jan. 5, 2009) (citing In Re: Billy D. Jacobs, a/k/a Ya qub, 213 F.3d 289 (5th
Cir.2000); Green v. Nottingham, 90 F.3d 415, 418 (10th Cir. 1996); In Re: Michael C. Washington, 122
F.3d 1345 (10th Cir. 1997); Hicks v. Brysch, 989 F. Supp. 797 (W.D. Tex. 1997)); see also In re Smith,
114 F.3d 1247, 1250 (D.C. Cir. 1997) (”[I]t would defeat the purpose of the PLRA if a prisoner could
evade its requirements simply by dressing up an ordinary civil action as a petition for mandamus[.]);
Green, 90 F.3d at 418 (“Allowing prisoners to continue filing actions as they had before enactment of the
[PLRA], merely by framing pleadings as petitions for mandamus would allow a loophole Congress surely
did not intend in its stated goal of ‘discourag[ing] frivolous and abusive prison lawsuits.’”); In re Nagy,
89 F.3d 115, 117 (2d Cir. 1996) (“[I]f a prisoner, contemplating the filing of a complaint . . . under 42
U.S.C. § 1983, decided to avoid liability for filing fees and instead sought comparable relief by applying
for a writ of mandamus . . . the PLRA provisions should normally apply.”); Tate v. Price, No. CIV A
2:09CV221-TMH, 2009 WL 1034965, at *1 (M.D. Ala. Apr. 16, 2009) (“claims are civil in nature and
governed by the provisions of the PLRA which prevent [petitioner] from proceeding in forma pauperis on
these claims due to his violation of the three-strikes provision.”); Hernandez v. Century Corr. Inst., No.
307CV185/LAC/EMT, 2007 WL 2376280, at *2 (N.D. Fla. Aug. 15, 2007).

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the imminent danger so as to escape the three strikes provision of the PLRA.’” Ball v. Allen,
No. 06-0496, 2007 WL 484547, at *2 (S.D. Ala. Feb. 8, 2007) (citing Muhammad v.
McDonough, No. CV306-527-J-32, 2006 WL 1640128, at *1 (M.D. Fla. June 9, 2006)).
Plaintiff should not be excused from prepaying the filing fee because of the imminent
danger of serious physical injury. His Complaint does not allege any facts, much less any facts
indicating he is at risk of imminent danger.

Therefore, Section 1915(g) bars him from

proceeding in forma pauperis in this case. Should Plaintiff choose to prosecute these claims
while incarcerated, he must bring a separate action and pay the full filing fee.
II.

Leave to Appeal In Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. 3

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 take 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). Or, 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

3

A certificate of appealablity is not required in this Section 1983 action.

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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. Moreover, as a “three striker”
Plaintiff is not only barred from filing a civil action in forma pauperis, he is also barred from
filing an appeal in forma pauperis while he is a prisoner. Thus, the Court should deny him in
forma pauperis status on appeal.
CONCLUSION
The Court VACATES the Order dated September 25, 2015, (doc. 4), and DENIES
Plaintiff’s Motion to Proceed In Forma Pauperis, (doc. 3). I also RECOMMEND that the
Court DISMISS Plaintiff’s Complaint, without prejudice, DENY AS MOOT Plaintiff’s Motion
for a Preliminary Injunction, and 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 to which
objection are made and may accept, reject, or modify in whole or in part, the findings or

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recommendations made by the Magistrate Judge.

Objections not meeting the specificity

requirement set out above will not be considered by a District Judge. The Clerk of Court is
DIRECTED to serve a copy of this Report and Recommendation upon Plaintiff.
SO ORDERED and REPORTED and RECOMMENDED, this 12th day of January,
2016.

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

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