Faircloth v. Williams

Filing 4

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DIMISS this action WITHOUT PREJUDICE and DENY Plaintiff leave to proceed in forma pauperis on appeal re 1 Complaint filed by Tommy Lee Faircloth, Jr. Any party seeking to object to t his 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 6/22/2016). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 6/8/2016. (ca)

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

TOMMY LEE FAIRCLOTH, JR.,
Plaintiff,

CIVIL ACTION NO.: 6:16-cv-62

v.
CAROL WILLIAMS,
Defendant.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, who is currently housed at Augusta State Medical Prison in Grovetown,
Georgia, submitted a Complaint in the above-captioned action pursuant to 42 U.S.C. § 1983
contesting actions taken by Carolyn Williams, owner of Southern Comfort Personal Care, a
personal care home. (Doc. 1.) For the reasons set forth below, Plaintiff has failed to set forth a
claim upon which relief may be granted. Consequently, I RECOMMEND that the Court
DISMISS this action WITHOUT PREJUDICE and DENY Plaintiff leave to proceed in forma
pauperis on appeal. Plaintiff’s Motion to Proceed in forma pauperis is DENIED. (Doc. 2.)
BACKGROUND
Plaintiff filed this Complaint against Carolyn Williams, owner of Southern Comfort
Personal Care, a personal care home located in Statesboro, Georgia. (Doc. 1.) Plaintiff contends
that he was living at the Southern Comfort Personal Care facility until August 14, 2014, when he
entered treatment at another hospital for approximately one month. (Id. at p. 5.) Following his
treatment, Plaintiff was confined at Bulloch County Jail in Statesboro, Georgia, until
February 12, 2015. (Id.) Plaintiff then called Defendant to inform her he was coming to retrieve

his belongings, which he left at the Southern Comfort Personal Care facility six months earlier.
(Id.) However, Defendant had disposed of Plaintiff’s belongings prior to his release from jail.
(Id.) Plaintiff maintains Defendant wrongfully threw away his belongings and requests that the
Court order her to replace his belongings or compensate him for the value of those belongings.
(Id. at p. 6.) Concomitantly with his Complaint, Plaintiff filed a Motion for leave to proceed in
forma pauperis. (Doc. 2.)
DISCUSSION
I.

Standard of Review
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); Grayson v. Mayview State
Hosp., 293 F.3d 103, 113 n.19 (3d Cir. 2002) (non-prisoner indigent plaintiffs are “clearly within
the scope of § 1915(e)(2)”); Dutta-Roy v. Fain, No. 1:14-CV-280-TWT, 2014 WL 1795205, at
*2 (N.D. Ga. May 5, 2014) (frivolity review of indigent non-prisoner plaintiff’s complaint).
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)).
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)).
Whether a complaint fails to state a claim under Section 1915 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.
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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II.

Claims Against Private Actor
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. The state-actor
requirement traditionally precludes suit against a private party under Section 1983, because a
private party may qualify as a state actor for Section 1983 purposes only in “rare circumstances.”
Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992). The Eleventh Circuit Court of Appeals
has recognized that a private entity may be liable as a “state actor” for a constitutional violation
only in the following circumstances: (1) “the State has coerced or at least significantly
encouraged the action alleged to violate the Constitution;” (2) “the private parties performed a
public function that was traditionally the exclusive prerogative of the State;” or (3) “the State had
so far insinuated itself into a position of interdependence with the [private parties] that it was a
joint participant in the enterprise[ ].” Rayburn ex rel. Rayburn v. Hogue, 241 F.3d 1341, 1347
(11th Cir. 2001) (alterations in original) (quoting NBC, Inc. v. Comm’cns Workers of Am., 860
F.2d 1022, 1026–27 (11th Cir. 1988)). Plaintiff’s Complaint does not allege facts supporting any
of these circumstances. While personal care homes are subject to government regulation, see
generally O.C.G.A. § 31-7-1, et seq., this does not classify Defendant as a state actor. See Blum
v. Yaretsky, 457 U.S. 991 (1982) (private nursing home not state actor despite extensive
regulation and receiving 90% of fees from state).

Even construing Plaintiff’s Complaint

liberally, he has failed to allege sufficient facts plausibly suggesting that Southern Comfort
Personal Care Home is a state actor subject to liability under § 1983, or that Defendant, who is

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being sued for actions taken in her capacity as owner of the facility, can be considered a state
actor under Section 1983. Accordingly, Plaintiff has failed to state a claim upon which relief
may be granted pursuant to Section 1983, and his Complaint should, therefore, be dismissed.
III.

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 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
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 appealablity 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, in forma pauperis status
on appeal should be DENIED.
CONCLUSION
For the reasons set forth above, I RECOMMEND that the Court DISMISS this action
WITHOUT PREJUDICE and DENY Plaintiff leave to proceed in forma pauperis on appeal.
Plaintiff’s Motion to Proceed In Forma Pauperis in this Court is DENIED. (Doc. 2.)
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. 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 Clerk of Court is DIRECTED
to serve a copy of this Report and Recommendation upon the Plaintiff.
SO ORDERED and REPORTED and RECOMMENDED, this 8th day of June, 2016.

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

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