Andrews et al v. Hall et al
REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Plaintiff's 1 Complaint without prejudice and DIRECT the Clerk of Court to CLOSE this case for failure to state a claim and failure to follow this Court's Order. Additionally, it is RECOMMENDED that the Court DENY Plaintiff leave to appeal in forma pauperis. 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 1/2/2017). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 12/19/2016. (csr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
CIVIL ACTION NO.: 6:16-cv-18
TYSON STEVENS; OFFICER FAYE;
OFFICER JAMES; OFFICER TONY;
OFFICER BRENDA; and OFFICER SHAW,
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, who is currently incarcerated at the Emanuel County Jail in Swainsboro,
Georgia, submitted a Complaint pursuant to 42 U.S.C. § 1983 contesting certain conditions of his
confinement. (Doc. 1.) Plaintiff filed two Motions to Amend his Complaint. (Docs. 13, 15.)
The Court ordered Plaintiff to amend his Complaint before frivolity review, (doc. 17), and
Plaintiff subsequently filed a third Motion to Amend Complaint with a Proposed Amendment,
(doc. 18). For the reasons set forth below, the Court DENIES Plaintiff’s Motions to Amend.
For these same reasons, I RECOMMEND the Court DISMISS Plaintiff’s Complaint without
prejudice and DIRECT the Clerk of Court to CLOSE this case for failure to state a claim and
failure to follow this Court’s Order. Additionally, I RECOMMEND the Court DENY Plaintiff
leave to appeal in forma pauperis.
In his Complaint, Plaintiff attempted to assert a myriad of conditions of confinement
claims on behalf of several other inmates. (Doc. 1.) Plaintiff also moved to proceed in forma
pauperis in this Court. (Doc. 2.) In granting Plaintiff’s Motion, the Court informed Plaintiff that
the other inmates listed as Plaintiffs in his Complaint could not proceed together in this cause of
action. (Doc. 3, p. 1 n.1.)
In his first Motion to Amend, Plaintiff contended Connie Peebles violated his rights by
opening his legal mail and holding that mail for several days before returning it to him.
(Doc. 13, p. 2.) Plaintiff also contended Kristin Hall, the Emanuel County Clerk of Court, failed
to stamp and file the motions he sent, refused to accept him as a pro se litigant, and violated the
attorney-client privilege by discussing his case with Connie Peebles. (Id.) Plaintiff asserted
“Officer Chris” and “Officer Keith” failed to de-louse inmates upon their arrival, leading to two
scabies’ outbreaks. (Id. at pp. 2–3.) Plaintiff maintained that, as a result of these outbreaks, he
had to be treated twice and had only boxers to wear. Finally, Plaintiff asserted he wrote the Post
Master concerning the opening of his legal mail and did not receive a response. (Id. at p. 3.)
In his second Motion to Amend, Plaintiff set forth the same claims as he did in his first
Motion to Amend. In addition to these already-asserted claims, Plaintiff contended “Officer
Gina” sent him a food tray with something he is allergic to, and he ate some of it by mistake.
(Doc. 15, p. 3.) Plaintiff maintained he was not taken to the hospital but was given some
Benadryl and “thrown in a holding cell.” (Id.)
The Court informed Plaintiff that none of the people listed as Defendants in Plaintiff’s
Motions to Amend were named in his original Complaint. The Court advised Plaintiff that he
may not join claims and various defendants in one action unless the claims “arise out of the same
transaction, occurrence, or series of transactions or occurrences; and any question of law or fact
common to all defendants will arise in the action.” (Doc. 17, p. 4 (citing Fed. R. Civ. P. 20(a).).
The Court concluded that Plaintiff’s Complaint and previously-filed Motions to Amend failed to
state a viable claim.
However, the Court provided Plaintiff the opportunity to amend his
Complaint and deferred frivolity review until Plaintiff filed a proper Amended Complaint.
In his Third Motion to Amend his Complaint, Plaintiff sets forth the same claims he did
in his original Complaint and names the same Defendants. However, for the reasons set forth
below, Plaintiff’s third attempt to amend his Complaint in a proper manner fails.
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
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.”).
Dismissal for Failure to State a Claim and Failure to Follow this Court’s Orders
The Court advised Plaintiff that his Amended Complaint must include which claim or
related claims Plaintiff wishes to pursue in this action and to specify the persons he intends to
sue. Additionally, the Court advised Plaintiff that his claims must be limited to those that arose
from the same transaction or occurrence or series of related transactions or occurrences and that
he could submit a separate complaint or complaints for his other claims. The Court forewarned
Plaintiff that, if he did not file an appropriate Amended Complaint, the Court may dismiss this
action for failure to prosecute and failure to follow this Court’s Orders. (Doc. 17, p. 5 (citing
Smith v. Owens, 625 F. App’x 924, 928 (11th Cir. 2015) (upholding this Court’s dismissal for
failure to comply with Federal Rule of Civil Procedure 20(a)); and Brown v. Tallahassee Police
Dep’t, 205 F. App’x 802, 802 (11th Cir. 2006) (upholding dismissal 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).). However, Plaintiff
ignored the Court’s instructions and instead re-submitted a Complaint very similar to his original
Plaintiff’s Third Amended Complaint is a “shotgun pleading” that is unclear as to which
facts are “material to the particular cause of action asserted.” Beckwith v. Bellsouth Telecomms.
Inc., 146 F. App’x 368, 372 (11th Cir. 2005) (quoting Strategic Income Fund, L.L.C. v. Spear,
305 F.3d 1293, 1295 n.9 (11th Cir. 2002)). Despite the Court specifically reminding Plaintiff
that he cannot “join unrelated claims and various defendants unless the claims ‘arise out of the
same transaction, occurrence, or series of transactions or occurrences; and any question of law or
fact common to all defendants will arise in the action[,]’” Plaintiff fails to follow this directive
and attempts to do the very same.
Specifically, Plaintiff complains generally about the
conditions of his confinement at the Emanuel County Jail and maintains that “Defendants” are
responsible for these conditions in their entirety.
The Court warned Plaintiff in its Order that, if he does not file an appropriately amended
Complaint, the Court may dismiss this action for failure to prosecute and failure to follow this
Court’s Orders. (Id.) (citations omitted). Accordingly, the Court should DISMISS Plaintiff’s
Complaint not only for failure to state a claim, but also for failure to follow this Court’s Orders.
See Taylor v. Spaziano, 251 F. App’x 616, 620–21 (11th Cir. 2007) (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).
Leave to Appeal in Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. 1
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
A certificate of appealability is not required in this Section 1983 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.
For the foregoing reasons, the Court DENIES Plaintiff’s Motions to Amend.
RECOMMEND the Court DISMISS Plaintiff’s Complaint without prejudice and DIRECT
the Clerk of Court to CLOSE this case. 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
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 the Plaintiff.
SO ORDERED and REPORTED and RECOMMENDED, this 19th day of December,
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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