Wilkerson v. Brown et al

Filing 4

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court should DISMISS Plaintiff's 1 Complaint, CLOSE this case, and DENY Plaintiff leave to appeal in forma pauperis. The Court ORDERS any party seeking to object to this Report and Re commendation 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 9/6/2016). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 8/23/2016. (ca)

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

CAROL WILKERSON,
Plaintiff,

CIVIL ACTION NO.: 6:16-cv-66

v.
SHERIFF NOEL J. BROWN; and BULLOCH
COUNTY SHERIFF’S DEPARTMENT,
Defendants.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff filed this cause of action pursuant to 42 U.S.C. § 1983 and 5 U.S.C. § 552a
contesting certain actions she alleges Defendants undertook. (Doc. 1.) Concurrent with her
Complaint, Plaintiff filed a Motion for Leave to Proceed in Forma Pauperis. (Doc. 2.) For the
reasons which follow, the Court DENIES Plaintiff’s Motion for Leave to Proceed in Forma
Pauperis. For these same reasons, I RECOMMEND the Court DISMISS Plaintiff’s Complaint
and DENY Plaintiff leave to proceed in forma pauperis on appeal.
BACKGROUND
Plaintiff contends that, on April 29, 2015, at Langston Chapel Middle School in
Statesboro, Georgia, the school’s principal called her to inform Plaintiff that her niece’s father
and his mother were at the school to get her niece out of school. (Doc. 1, p. 5.) Plaintiff told the
principal not to release her niece to the niece’s father, but the principal informed Plaintiff that
she had to release Plaintiff’s niece if her father could prove his paternity by showing the niece’s
birth certificate. Plaintiff asserts she told the principal that releasing her niece was against the
law pursuant to O.C.G.A. §§ 20-2-280(a) and (d), and the principal called the Sheriff’s

Department for assistance.

Plaintiff alleges Defendant Noel Brown, the Sheriff, released

Plaintiff’s niece to her father and his mother without Plaintiff’s permission, and school officials
did nothing to prevent him from violating O.C.G.A. §§ 20-2-780(a) and (d). (Id.) Plaintiff
maintains she was “tazed” by an unknown male with the Bulloch County Sheriff’s Department
and has pain in her arm as a result. (Id. at p. 6.) Plaintiff also maintains she was forced to sit in
jail for five months without bond and was subjected to unspecified instances of cruel and unusual
punishment at the hands of Bulloch County Sheriff’s Department officers. Plaintiff wishes for
Defendant Brown to be arrested and fined in the amount of $500,000. (Id.) Plaintiff sues
Defendants in their official capacities only.
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 her assets and shows an inability to pay the filing fee and also includes a statement of the
nature of the action which shows that she 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.

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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)).
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(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.
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

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have never suggested that procedural rules in ordinary civil litigation should be interpreted so as
to excuse mistakes by those who proceed without counsel.”).
DISCUSSION
I.

Claims Against the Bulloch County Sheriff’s Department
Plaintiff names the Bulloch County Sheriff’s Department as a Defendant. However, the

Bulloch County Sheriff’s Department is not an entity subject to suit under Section 1983.
Lovelace v. DeKalb Central Probation, 144 F. App’x 793, 795 (11th Cir. 2005) (county police
department not a legal entity subject to suit); Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir.
1992) (sheriff and police departments not usually considered legal entities subject to suit). 1
In addition, Plaintiff does not make any factual allegation against the Bulloch County
Sheriff’s Department in her Complaint, suggesting that she is attempting to state a respondeat
superior claim for the actions of the Department’s employees, which is a claim not cognizable
under Section 1983. Polk Cty. v. Dodson, 454 U.S. 312, 325 (1981); Monell v. New York City
Dep’t of Social Servs., 436 U.S. 658, 691 (1978). Section 1983 liability must be based on
something more than a defendant’s supervisory position or a theory of respondeat superior. 2
Bryant v. Jones, 575 F.3d 1281, 1299 (11th Cir. 2009); Braddy v. Fla. Dep’t of Labor & Emp’t
Sec., 133 F.3d 797, 801 (11th Cir. 1998). A supervisor may be liable only through personal
participation in the alleged constitutional violation or when there is a causal connection between
the supervisor’s conduct and the alleged violations. Id. at 802. “To state a claim against a

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Even if Bulloch County Sherriff’s Department was a legal entity subject to suit under Section 1983, it
would be considered an arm of the State of Georgia. As described below, the Eleventh Amendment
immunizes the State from Section 1983 claims. This is yet another reason for dismissal of Plaintiff’s
claims against the Sheriff’s Department.
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The principle that respondeat superior is not a cognizable theory of liability under Section 1983 holds
true regardless of whether the entity sued is a state, municipality, or private corporation. Harvey v.
Harvey, 949 F.2d 1127, 1129–30 (11th Cir. 1992).

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supervisory defendant, the plaintiff must allege (1) the supervisor’s personal involvement in the
violation of his constitutional rights, (2) the existence of a custom or policy that resulted in
deliberate indifference to the plaintiff’s constitutional rights, (3) facts supporting an inference
that the supervisor directed the unlawful action or knowingly failed to prevent it, or (4) a history
of widespread abuse that put the supervisor on notice of an alleged deprivation that he then failed
to correct.” Barr v. Gee, 437 F. App’x 865, 875 (11th Cir. 2011).
Plaintiff does not set forth any facts suggesting the Bulloch County Sheriff’s Department
instituted a policy or custom which resulted in the alleged violations of her constitutional rights
or that the Sheriff’s Department could have acted in a way to violate her rights. For all of these
reasons, the Court should DISMISS Plaintiff’s claims against the Bulloch County Sheriff’s
Department.
II.

Claims Against Defendant Brown
As stated above, Plaintiff sues Defendant Brown in his official capacity as the Sheriff of

Bulloch County. (Doc. 1, p. 1.) However, claims against Sheriff Brown in his official capacity
are the same as claims against the State of Georgia. Therefore, such claims are barred by the
Eleventh Amendment to the United States Constitution. 3
A suit against a person in his official capacity is actually a suit against the governmental
entity the person represents. Kentucky v. Graham, 473 U.S. 159 (1985). Consequently, a
lawsuit against a state agency in its official capacity is no different from a suit against a state
itself; such a defendant is immune from suit under the Eleventh Amendment. Will v. Mich.
Dep’t of State Police, 491 U.S. 58, 71 (1989). In enacting Section 1983, Congress did not intend
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Plaintiff only sued Brown in his official capacity as an employee of the Bulloch County Sheriff’s
Department. Plaintiff used a form to file her Complaint, and the form asked whether she was suing
Brown in his official or individual capacity, and Plaintiff only checked official capacity. (Doc. 1, p. 3.)
Regardless, as explained below, even if Plaintiff had sued Brown in his individual capacity, she fails to
plausibly allege a valid claim against him.

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to abrogate “well-established immunities or defenses” under the common law or the Eleventh
Amendment. Id. at 67. Eleventh Amendment immunity may be asserted not only by state
officers and state officials, but by all persons “acting as an ‘arm of the State,’ which includes
agents and instrumentalities of the State.” Manders v. Lee, 338 F.3d 1304, 1308 (11th Cir. 2003)
(citing Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429–30 (1997)). The determination of
whether a defendant is an “arm of the state” must be assessed “in light of the particular function
which the Defendant was engaged when taking the actions out of which liability is asserted to
arise.” Id. “As the Supreme Court has explained in determining whether a sheriff is a state or
county policymaker for purposes of a § 1983 action, the question is not whether [the sheriff] acts
for [the state] or [the county] in some categorical, all or nothing manner, but rather whether the
sheriff is acting for the state in a particular area, or on a particular issue.”

Abusaid v.

Hillsborough Cty. Bd. of Cty. Comm’rs, 405 F.3d 1298, 1303 (11th Cir. 2005) (alteration in
original) (internal quotation marks omitted) (citing McMillian v. Monroe Cty., 520 U.S. 781, 785
(1997)).

The law is well-settled that, when a Georgia sheriff and members of the sheriff

department act in a law enforcement capacity, they are acting on behalf of the State. See
Manders, 338 F.3d at 1308; Grech v. Clayton Cty., Ga., 335 F.3d 1326, 1347 (11th Cir. 2003)
(“[T]he sheriff acts on behalf of the State in his function as a law enforcement officer[.]”); see
also Townsend v. Coffee Cty., Ga., 854 F. Supp. 2d 1345 (S.D. Ga. 2011). As this Court has
recognized,
Since Manders was decided in 2003, the relevant Georgia law remains essentially
unchanged. Indeed, it is now ‘insurmountable’ that Georgia sheriffs act as arms
of the state – not as county officials. . . . In sum, Manders and its progeny dictate
that where a sheriff and his deputies are performing their official and authorized
duties as state actors–i.e. engaged in general law enforcement functions or making
arrests pursuant to state law-they are entitled to Eleventh Amendment immunity
from a § 1983 claim for money damages or other retrospective relief brought
against them in their official capacities.

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Frederick v. Brown, No. CV 113-176, 2015 WL 4756765, at *14 (S.D. Ga. Aug. 10, 2015)
(citing Manders, 338 F.3d at 132; Grech, 335 F.3d at 1332–40; Hall v. Fries, No. 7:13-CV-105
HL, 2014 WL 1389063, at *4–5 (M.D. Ga. Apr. 9, 2014); Scott v. Mercier, No. 5:06-CV-33,
2007 WL 2728440 (S.D. Ga. Sept. 14, 2007); Lewis v. Wilcox, No. 3:06-cv-29, 2007 WL
3102189, at *8 (M.D. Ga. Oct. 23, 2007)).
In the case at hand, it is clear from Plaintiff’s Complaint that any involvement Defendant
Brown had in her claims would be in a law enforcement capacity. Consequently, Defendant
Brown is entitled to Eleventh Amendment immunity from a Section 1983 claim for money
damages or other retrospective relief brought against him in his official capacity. For these
reasons, the Court should DISMISS Plaintiff’s claims against Defendant Brown.
III.

Plaintiff’s Claims Pursuant to 5 U.S.C. § 552a
Plaintiff has brought her Complaint, in part, pursuant to 5 U.S.C. § 552a. (Doc. 1,

pp. 4, 8.) Section 552a is part of the Freedom of Information Act, 5 U.S.C. § 500, et seq.
(“FOIA”), and contains definitions for “Records maintained on individuals”. Plaintiff fails to
make any allegation that a governmental agency has violated any presumptive rights under the
FOIA. Instead, it appears Plaintiff randomly selected a federal statute and used it as a putative
basis for her Complaint. Such is a practice Plaintiff has employed in this Court on previous
occasions. See, e.g., Wilkerson v. Statesboro Police Dep’t, No. CV609-075, 2009 WL 4609603,
at *1 (S.D. Ga. Dec. 2, 2009) (“[I]t is clear that Wilkerson is adamant about randomly citing to
federal statutes on which to peg jurisdiction to harass others with facially frivolous lawsuits.”). 4
Accordingly, the Court should DISMISS Plaintiff’s Complaint for this reason, as well.

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Magistrate Judge G.R. Smith has referred to Plaintiff as a “determined repeat filer in this Court,” and
set forth some of the many causes of action Plaintiff has filed in this Court. Wilkerson, 2009 WL
4609603, at *1 (emphasis in original). As examples, Judge Smith cited: Wilkerson v. MaxWay Dep’t

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IV.

Plaintiff’s State Law Claims Pursuant to O.C.G.A. § 20-2-780
Finally, Plaintiff contends that Defendants and the principal at her niece’s school violated

Section 20-2-780 of the Georgia statutes. Plaintiff’s citation to a Georgia statute does not state a
claim upon which this Court can grant relief. “Federal courts are courts of limited jurisdiction,
and they only possess the power authorized by Congress or the Constitution.” Stone v. Bank of
New York Mellon, N.A., 609 F. App’x 979, 981 (11th Cir. 2015).

This Court only has

jurisdiction over claims involving a federal question or claims involving parties who are citizens
of different states. See 28 U.S.C. §§ 1331 & 1332. The factual allegations in the Complaint do
not invoke any federal law that could give the Court jurisdiction over this action, and Plaintiff
does not allege that the parties involved are citizens of different states. Instead, Plaintiff’s state
law claims should be asserted in state court. 5 Consequently, Plaintiff does not cite any basis for
this Court to exercise jurisdiction over this case based on alleged violations of Georgia law, and
the Court should DISMISS these claims.

Store, No. CV609-071, 2009 WL 3481896 at * 2 (S.D. Ga. Oct. 28, 2009) (dismissed as frivolous case
alleging that retailer violated the Privacy Act of 1974 by accusing her, via local police, of shoplifting);
Wilkerson v. Statesboro Fin. Co., No. CV609-069 (S.D. Ga. filed Sept. 22, 2009) (upset with a car loan,
the lender, and its collection agency, plaintiff alleges a violation of the Privacy Act of 1974); Wilkerson v.
H & S Lee, Inc., No. CV609-033 (S.D. Ga. dismissed June 16, 2009) (employment discrimination case
dismissed without prejudice on administrative non-exhaustion grounds), ECF No. 9; Wilkerson v. EEOC,
No. CV606-034 (S.D. Ga. dismissed June 16, 2009) (Freedom of Information Act case against EEOC
dismissed without prejudice on administrative non-exhaustion grounds), ECF No. 8; Wilkerson v.
Bulloch Cty. Sheriff’s Dep’t, No. CV605-106 (S.D. Ga. dismissed Apr. 12, 2006) (rejecting under Heck
v. Humphrey, 512 U.S. 477 (1994), then inmate-Wilkerson’s 42 U.S.C. § 1983-based, “false
imprisonment” case because she failed to state a claim), ECF No. 12; and Wilkerson v. Grinnell Corp.,
No. CV699-133 (S.D. Ga. dismissed Apr. 16, 2005) (summary judgment, merits dismissal of employment
discrimination claims, including one for a “sex-based hostile environment”), ECF No. 44; see also,
Wilkerson v. Langston Chapel Middle School, 6:16-cv-55 (S.D. Ga. dismissed Aug. 17, 2016) (failure to
state a claim on facts partially forming the basis of her Complaint in the instant cause of action), ECF
No. 12.
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This Court expresses no opinion on the ultimate merits of Plaintiff’s claims. However, it does not
appear that O.C.G.A. § 20-2-780 gives Plaintiff a private cause of action even under state law.

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V.

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. 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).
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.
CONCLUSION
For the numerous reasons set forth above, the Court should DISMISS Plaintiff’s
Complaint, CLOSE this case, and DENY Plaintiff leave to appeal in forma pauperis.

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

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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 Clerk of Court is DIRECTED
to serve a copy of this Report and Recommendation upon the Plaintiff.
SO ORDERED and REPORTED and RECOMMENDED, this 23rd day of August,
2016.

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

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