Fredrick v. Williams

Filing 5

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Plaintiff's 1 Complaint, DISMISS as moot Plaintiff's 3 MOTION for Preliminary Injunction, CLOSE this case, and DENY Plaintiff leave to proceed in forma pauper is on appeal. 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 8/9/2016). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 7/26/2016. (csr)

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

DANTE G. FREDRICK,
Plaintiff,

CIVIL ACTION NO.: 6:16-cv-73

v.
STANLEY WILLIAMS,
Defendant.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, who is currently incarcerated at Valdosta State Prison in Valdosta, Georgia,
filed a cause of action pursuant to 42 U.S.C. § 1983, contesting certain conditions of his
confinement while he was housed at Georgia State Prison in Reidsville, Georgia. (Doc. 1.) For
the reasons that follow, the Court DENIES Plaintiff’s Motion to Proceed In Forma Pauperis
before this Court, (doc. 2). Further, I RECOMMEND that the Court DISMISS Plaintiff’s
Complaint, DISMISS as moot Plaintiff’s Motion for Preliminary Injunction, (doc. 3), CLOSE
this case, and DENY Plaintiff leave to proceed in forma pauperis on appeal.
PLAINTIFF’S ALLEGATIONS
Plaintiff filed this action against Defendant regarding a slew of alleged constitutional
violations that occurred while he was at GSP. (Doc. 1.) In his Complaint, Plaintiff alleges that
Defendant Williams put into place several policies that denied Plaintiff access to the courts and
reduced programs that allowed Plaintiff to meet his parole requirements. Additionally, Plaintiff
alleges that he was wrongfully deemed a high ranking gang member and placed in involuntary
segregation.

He also states that prison officials exposed him to other gang members by

misclassifying him as a high security prisoner. He makes allegations about other inmates tying
him up while he was at Smith State Prison.

Additionally, Plaintiff alleges that: he faces

discrimination from prison officials; he has to smell feces and urine from his toilet because all
the buttons have been taken out; the cells have no fire sprinklers or emergency call buttons;
suicide is rampant; and that there are deaths from medical issues.
STANDARD OF REVIEW
Plaintiff seeks to bring this action in forma pauperis under 42 U.S.C. § 1983. 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). 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).
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)).
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.”).

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DISCUSSION
I.

Dismissal Under Section 1915(g)
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. 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.
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 the doctrine of separation of
powers, nor does it violate an inmate’s rights to access to the courts, to due process of law, or to
equal protection. Rivera, 144 F.3d at 721–27.
A review of Plaintiff’s history of filings reveals that he has brought numerous civil
actions or appeals which were dismissed and appear to count as strikes under Section 1915(g). A
non-exhaustive list of these cases includes the following:

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•

Fredrick v. Danforth, et al., No. 3:14-cv-162 (S.D. Ga. April 27, 2015) (dismissal for
failure to truthfully disclose litigation history);

•

Fredrick v. Hooks, et al., No. 3:14-cv-153 (S.D. Ga. May 18, 2015) (dismissal for failure
to follow court orders and failure to prosecute); and

•

Fredrick v. Scarlett, et al., No. 2:15-cv-135 (S.D. Ga. Dec. 9, 2015) (dismissal for failure
to state a claim).

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
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’s Complaint makes no allegations about an imminent risk of physical danger,
much less any facts supporting such an allegation. Although Plaintiff mentions that he was

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exposed to gang violence because of his alleged misclassification as a high ranking gang
member, Plaintiff also clearly states that GSP moved him to involuntary segregation to protect
him from these threats. (Doc. 1, p. 6.) Additionally, while Plaintiff makes some allegations
regarding prison conditions, his conclusory allegations do not plausibly set forth a sufficiently
specific harm to meet the imminent risk exception. Therefore, Section 1915(g) provides further
grounds for the Court to deny him leave to proceed in forma pauperis and to DISMISS this
case. 1
II.

Dismissal for Failure to State a Claim
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. Moreover, the
Eleventh Circuit has stated that the district courts are not required to “sift through the facts
presented and decide for itself which were 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, LLC v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1295 n.9 (11th
Cir. 2002) (citations omitted)).
In this case, Plaintiff does not provide sufficient facts to allow the Court to know
precisely who committed which violations, when they occurred, and at which prison they
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Plaintiff can also be barred for abuse of judicial process. In his Complaint, Plaintiff indicates that he
has brought other lawsuits in federal court, but instead of providing details, he writes that he “can’t
remember them all most were voluntary dismissed or dismissed filing as a pro se litigant not really
knowing what I was doing at time [sic]. I’m leaving sections blank cause I don’t want to make no
mistakes[.]” (Doc. 1, p. 3.) However, when asked whether any suit was dismissed for being frivolous,
malicious, or failed to state a claim, Plaintiff does not leave the section blank, he specifically marks “No.”
(Id.)

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occurred. Plaintiff provides a litany of complaints that occurred over a series of time and ranges
from access to courts to malfunctioning toilets. This failure to state a claim provides another
independent basis for the Court to dismiss this action.
III.

Leave to Appeal In Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. 2

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).

2

A certificate of appealability 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, the Court should DENY
Plaintiff in forma pauperis status on appeal.
CONCLUSION
For the foregoing reasons, the Court DENIES Plaintiff’s Motion to Procced in forma
pauuperis. I RECOMMEND that the Court DISMISS this case, DISMISS as moot Plaintiff’s
Motion for Preliminary Injunction, (doc. 3), 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, 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 26th day of July, 2016.

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

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