Pierce v. Georgia State Prison

Filing 8

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS this case and DENY Plaintiff leave to appeal in forma pauperis re 1 Complaint filed by Casey Daniel Pierce. The Court ORDERS any party seeking to object to this Report and R ecommendation 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 1/26/2017). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 1/12/2017. (ca)

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

CASEY DANIEL PIERCE,
Plaintiff,

CIVIL ACTION NO.: 6:16-cv-172

v.
GEORGIA STATE PRISON; and MARTY C.
ALLEN,
Defendants.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, who is currently housed at Georgia State Prison in Reidsville, Georgia,
submitted a Complaint in the above-captioned action pursuant to 42 U.S.C. § 1983. (Doc. 1.)
For the reasons set forth below, I RECOMMEND that the Court DISMISS Plaintiff’s
Complaint and DENY Plaintiff leave to proceed in forma pauperis on appeal. Additionally, I
RECOMMEND the Court DIRECT the Clerk of Court to enter the appropriate judgment of
dismissal and to CLOSE this case.
BACKGROUND
Plaintiff filed this action contesting certain conditions of his confinement. Specifically,
Plaintiff contends that Defendants violated his Fourteenth Amendment right to due process and
his Eighth Amendment right against cruel and unusual punishment by placing him in the Tier II
administrative segregation unit (“Tier II Unit”). (Doc. 1, p. 4.) First, Plaintiff contends that he
has already been punished for the behavioral infractions upon which his current Tier II

confinement is based. Second, Plaintiff contends Defendants denied him a hearing to contest his
continued placement in administrative segregation. (Id.)
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
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)).

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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.”). The requisite review of Plaintiff’s
Complaint raises several doctrines of law, which the Court discusses as follows.

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DISCUSSION
I.

Dismissal of Claims Against Georgia State Prison
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. While local
governments qualify as “persons” under Section 1983, state agencies and penal institutions are
generally not considered legal entities subject to suit. See Grech v. Clayton Cty., 335 F.3d 1326,
1343 (11th Cir. 2003); Darrough v. Allen, No. 1:13-CV-57 WLS, 2013 WL 5902792, at *3
(M.D. Ga. Oct. 8, 2013) (“A state and its agencies (such as the Georgia Department of
Corrections) are not ‘persons’ who may be sued under § 1983.”); see also Williams v. Ga. Dep’t
of Corr., No. CV612-050, 2012 WL 3911232, at *1 (S.D. Ga. Aug. 6, 2012), report and
recommendation adopted, No. CV612-050, 2012 WL 3910834 (S.D. Ga. Sept. 6, 2012)
(“Because the Georgia Department of Corrections is a state agency, it is not a ‘person’ subject to
suit under § 1983.”) A prison, such as Georgia State Prison, is a building, not a person, and
therefore, is not a viable defendant under Section 1983. Williams v. Chatham Cty. Sherriff’s
Complex, Case No. 4:07-cv-68, 2007 WL 2345243 (S.D. Ga. Aug. 14, 2007) (“The county jail,
however, has no independent legal identity and therefore is not an entity that is subject to suit
under Section 1983.”).
Furthermore, states are immune from private suits pursuant to the Eleventh Amendment
and traditional principles of state sovereignty. Alden v. Maine, 527 U.S. 706, 712–13 (1999).
Section 1983 does not abrogate the well-established immunities of a state from suit without its

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consent. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 67 (1989). Here, even if Georgia
State Prison were a legal entity subject to suit pursuant to Section 1983, the State of Georgia
would be the real party in interest. Accordingly, the Eleventh Amendment immunizes this
Defendant from suit. See Free v. Granger, 887 F.2d 1552, 1557 (11th Cir. 1989).
For all of these reasons, the Court should DISMISS all claims against Georgia State
Prison.
II.

Dismissal of Claim for Monetary Damages Against Defendant Allen in his Official
Capacity
Plaintiff cannot sustain a Section 1983 claim for monetary damages against Defendant

Allen in his official capacity. As laid out in Section I above, the Eleventh Amendment and
traditional principles of state sovereignty immunize states from suit in federal court. Alden, 527
U.S. at 712–13. Section 1983 does not abrogate this immunity. Will, 491 U.S. at 67. A lawsuit
against Defendant in his official capacity as an employee of the Georgia Department of
Corrections is “no different from a suit against the [s]tate itself.” Id. at 71. Accordingly, the
Eleventh Amendment immunizes Defendant Allen from suit in his official capacity. See Free,
887 F.2d at 1557. Plaintiff cannot sustain any constitutional claims against Defendant Allen in
his official capacity for monetary relief, and the Court should, therefore, DISMISS this claim.
III.

Dismissal of Claims for Compensatory and Punitive Damages
No Federal civil action may be brought by a prisoner confined in a jail, prison, or other

correctional facility, for mental or emotional injury suffered while in custody without a prior
showing of physical injury.” 42 U.S.C. § 1997e(e). The purpose of this statute is “to reduce the
number of frivolous cases filed by imprisoned plaintiffs, who have little to lose and excessive
amounts of free time with which to pursue their complaints.” Napier v. Preslicka, 314 F.3d 528,

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531 (11th Cir. 2002) (citing Harris v. Garner, 216 F.3d 970, 976–79 (11th Cir. 2000)).
“Tracking the language of [this] statute, § 1997e(e) applies only to lawsuits involving (1) Federal
civil actions (2) brought by a prisoner (3) for mental or emotional injury (4) suffered while in
custody.” Id. at 532.
In Williams v. Brown, 347 F. App’x 429, 436 (11th Cir. 2009), the Eleventh Circuit
stated that, “compensatory damages under § 1983 may be awarded only based on actual injuries
caused by the defendant and cannot be presumed or based on the abstract value of the
constitutional rights that the defendant violated. Pursuant to 42 U.S.C. § 1997e(e), in order to
recover for mental or emotional injury suffered while in custody, a prisoner bringing a § 1983
action must demonstrate more than a de minim[i]s physical injury.” Id. (internal citations
omitted) (alterations in original). Consequently, a prisoner that has not suffered any physical
injury cannot recover compensatory or punitive damages. Al-Amin v. Smith, 637 F.3d 1192,
1199 (11th Cir. 2011) (“In sum, our published precedents have affirmed district court dismissals
of punitive damage claims under the PLRA [(Prison Litigation Reform Act)] because the
plaintiffs failed to meet § 1997e(e)’s physical injury requirement.”); Smith v. Allen, 502 F.3d
1255, 1271 (11th Cir. 2007) (“Plaintiff seeks nominal, compensatory, and punitive damages. It
is clear from our case law, however, that the latter two types of damages are precluded under the
PLRA.”), abrogated on other grounds by Sossamon v. Texas, 563 U.S. 277 (2011). “In order to
avoid dismissal under § 1997e(e), a prisoner’s claims for emotional or mental injury must be
accompanied by allegations of physical injuries that are greater than de minimis.” Mitchell v.
Brown & Williamson Tobacco Corp., 294 F.3d 1309, 1312–13 (11th Cir. 2002). “The meaning
of the phrase ‘greater than de minimis,’ however, is far from clear.” Chatham v. Adcock, 334 F.
App’x 281, 284 (11th Cir. 2009).

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In this case, Plaintiff has not alleged that he has suffered any physical injury due to
Defendants’ alleged constitutional violations.

Accordingly, the Court should DISMISS

Plaintiff’s claims for compensatory and punitive damages pursuant to 42 U.S.C. § 1997e(e).
IV.

Dismissal of Due Process Claims
Plaintiff contends that Defendants have violated his due process rights by placing him in

administrative segregation.

As an initial matter, this Court must give deference to prison

officials on matters of prison administration and should not meddle in issues such as the contents
of a prisoner’s file and a prisoner’s housing. Courts traditionally are reluctant to interfere with
prison administration and discipline, unless there is a clear abuse of discretion. See Procunier v.
Martinez, 416 U.S. 396, 404–05 (1974) (“Traditionally, federal courts have adopted a broad
hands-off attitude toward problems of prison administration [because] . . . courts are ill equipped
to deal with the increasingly urgent problems of prison administration and reform.”), overruled
on other grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989). In such cases, “[d]eference to
prison authorities is especially appropriate.” Newman v. State of Alabama., 683 F.2d 1312,
1320–21 (11th Cir. 1982) (reversing district court’s injunction requiring release of prisoners on
probation because it “involved the court in the operation of the State’s system of criminal justice
to a greater extent than necessary” and less intrusive equitable remedy was available); see also
Thornburgh, 490 U.S. at 407–08 (“Acknowledging the expertise of these officials and that the
judiciary is ‘ill equipped’ to deal with the difficult and delicate problems of prison management,
this Court has afforded considerable deference to the determinations of prison administrators
who, in the interest of security, regulate the relations between prisoners and the outside world.”);
Bell v. Wolfish, 441 U.S. 520, 547 (1979) (acknowledging that courts have “accorded wideranging deference [to prison administrators] in adoption and execution of policies and practices

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that in their judgment are needed to preserve internal order and discipline and to maintain
institutional security.”); Jones v. N. Carolina Prisoners’ Labor Union, 433 U.S. 119, 129 (1977)
(“Prison officials must be free to take appropriate action to ensure the safety of inmates and
corrections personnel and to prevent escape or unauthorized entry.”); Bradley v. Hart, No.
CV513-127, 2015 WL 1032926, at *10 (S.D. Ga. Mar. 9, 2015) (“It does not appear to be
appropriate for this Court to order that prison officials remove entries from Plaintiff’s file, which
may or may not be accurate.”).
However, the Court will assess whether Plaintiff has plausibly stated a claim for denial of
his procedural or substantive due process rights by placing him in administrative segregation.
A.

Procedural due process

An inmate states a cognizable claim for the deprivation of his procedural due process
rights under the Fourteenth Amendment when he alleges the deprivation of a constitutionally
protected liberty or property interest, state action, and constitutionally inadequate process.
Shaarbay v. Palm Beach Cty. Jail, 350 F. App’x 359, 361 (11th Cir. 2009) (citing Cryder v.
Oxendine, 24 F.3d 175, 177 (11th Cir. 1994)). “Prison disciplinary proceedings are not part of a
criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not
apply.” Wolff v. McDonnell, 418 U.S. 539, 556, (1974). Rather, “a disciplinary proceeding,
whose outcome will ‘impose[ ] atypical and significant hardship on the inmate’ must ensure the
following due process rights: (1) advance written notice of the claimed violation, (2) a written
statement by the fact finders as to the evidence relied upon and the reasons for the disciplinary
action taken, and (3) an opportunity to call witnesses and present documentary evidence in his
defense.” Asad v. Crosby, 158 F. App’x 166, 173 (11th Cir. 2005) (citing Wolff, 418 U.S. at
563–67).

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Although Plaintiff alleges that his placement in administrative segregation was punitive
in nature, 1 Plaintiff presents no facts plausibly alleging this confinement resulted in any atypical
or significant hardship. Accordingly, Plaintiff cannot sustain a procedural due process claim
against Defendants. 2
B.

Substantive Due Process

“The Due Process Clause protects against deprivations of ‘life, liberty, or property
without due process of law.’” Kirby v. Siegelman, 195 F.3d 1285, 1290 (11th Cir. 1999)
(quoting U.S. Const. Amend. XIV). The Supreme Court has identified two situations in which a
prisoner can be deprived of liberty such that the protection of due process is required: (1) there is
a change in the prisoner’s conditions of confinement so severe that it essentially exceeds the
sentence imposed by the court; and (2) the State has consistently given a benefit to prisoners,
usually through a statute or administrative policy, and the deprivation of that benefit “imposes
atypical and significant hardship on the inmate in relation to the ordinary incidents of prison
life.” Id. at 1290–91 (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)).
In Sandin, the United States Supreme Court addressed whether the punishment inmate
Conner received for a disciplinary violation was sufficient to invoke a liberty interest protected
1

Plaintiff states that he was “placed [i]n Tier II [administrative segregation] because of [his] disciplinary
history.” (Doc. 1, p. 4.)
2

A prisoner’s detention in administrative or disciplinary segregation may constitute an “atypical and
significant hardship” in relation to the ordinary incidents of prison life if that confinement is long-term or
indefinite. Hill v. Sellars, 2016 WL 1554118, at *3 (M.D. Ga. Mar. 4, 2016) (citing Sandin, 515 U.S. at
484; Williams v. Fountain, 77 F.3d 372, 374, n.3 (11th Cir. 1996) (finding that a full year of solitary
confinement constituted an “atypical and significant hardship” warranting due process protections)).
Here, however, Plaintiff alleges that he was placed in the Tier II Unit on November 9, 2016—less than six
weeks prior to the filing of his Complaint. (Doc. 1, p. 4.) See Rodgers v. Singletary, 142 F.3d 1252,
1253 (11th Cir. 1998) (affirming that two months’ confinement to administrative segregation was not a
deprivation of a constitutionally protected liberty interest). Furthermore, Plaintiff does not allege that his
confinement in the Tier II Unit is indefinite. Accordingly, Plaintiff fails to state a plausible due process
claim for these additional reasons.

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by the Due Process Clause. 515 U.S. at 472. Following a disciplinary conviction, Conner
received 30 days’ disciplinary segregation in a Special Housing Unit. Id. at 475. After noting
that the segregation was a form of punishment, the Court concluded that it was not a dramatic
departure from the conditions of Conner’s indeterminate sentence. Id. at 485. The Supreme
Court held there is no right inherent in the Due Process Clause for an inmate not to be placed in
disciplinary segregation nor is there a state-created liberty interest to be free from disciplinary
segregation. Id. at 487. The Court determined that the conditions of disciplinary segregation at
the prison where Conner was incarcerated were virtually indistinguishable from the conditions of
administrative segregation and protective custody. Id. at 486. Also, the Court noted that the
conditions of disciplinary segregation were not markedly different from the conditions in general
population. Id. The Court concluded that the conditions of disciplinary segregation did not
impose an “atypical, significant deprivation in which a State might conceivably create a liberty
interest.” Id. Thus, the Court determined that Conner was not entitled to due process protection.
Id. at 487. The Court observed that this holding was a return to the due process principles of
Wolff v. McDonnell, 418 U.S. 539 (1974), and Meachum v. Fano, 427 U.S. 215 (1976), which
required an inmate to suffer a “grievous loss” before a liberty interest could be found. Id. at
478–83. The Sandin Court ruled that in the future, liberty interests “will be generally limited to
freedom from restraint which, while not exceeding the sentence in such an unexpected manner as
to give rise to protection by the Due Process Clause of its own force, (citations omitted),
nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life.” Id. at 480, 484; see also Rodgers v. Singletary, 142 F.3d 1252, 1253
(11th Cir. 1998) (affirming that two months’ confinement to administrative segregation was not a
deprivation of a constitutionally protected liberty interest).

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An inmate, therefore, has a liberty interest related to his confinement in segregation only
if the state has created a liberty interest through the nature of the conditions. Sandin, 515 U.S. at
487. To determine whether the state has created a liberty interest, courts must look to the nature
of the conditions of the confinement in relation to the ordinary incidents of prison life, rather
than to the language of the regulations regarding those conditions. Id. at 484; Wallace v.
Hamrick, 229 F. App’x 827, 830 (11th Cir. 2007). Courts should also consider the duration of
the confinement in segregation when determining if the confinement constitutes an atypical and
significant hardship. See Al-Amin v. Donald, 165 F. App’x 733, 738 (11th Cir. 2006); see also
Williams v. Fountain, 77 F.3d 372, 374 (11th Cir. 1996).
In the present action, Plaintiff has not plausibly alleged that his placement in
administrative segregation deprives him of a liberty interest inherent in the Constitution.
Plaintiff fails to state what liberty interest is at stake from his placement in the unit. Moreover,
Plaintiff fails to set forth any facts which plausibly could lead to the conclusion that the
conditions of administrative segregation impose an atypical and significant hardship on him
relative to the ordinary incidents of prison life. Thus, Plaintiff’s confinement in administrative
segregation does not deprive him of a constitutional liberty interest or a state-created liberty
interest to which due process could attach.
In short, Plaintiff fails to set forth facts sufficient to render any procedural due process or
substantive due process claim plausible against Defendants. Thus, the Court should DISMISS
Plaintiff’s due process claims.
V.

Dismissal of Cruel and Unusual Punishment Claims
The cruel and unusual punishment standard of the Eighth Amendment requires prison

officials to “ensure that inmates receive adequate food, clothing, shelter, and medical care.”

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Farmer v. Brennan, 511 U.S. 825, 832 (1994). Generally speaking, however, “prison conditions
rise to the level of an Eighth Amendment violation only when they involve the wanton and
unnecessary infliction of pain.” Chandler v. Crosby, 379 F.3d 1278, 1289 (11th Cir. 2004)
(quotations omitted). Thus, not all deficiencies and inadequacies in prison conditions amount to
a violation of a prisoner’s constitutional rights. Rhodes v. Chapman, 452 U.S. 337, 349 (1981).
The Constitution does not mandate comfortable prisons. Id. Prison conditions violate the Eighth
Amendment only when the prisoner is deprived of “the minimal civilized measure of life’s
necessities.” Id. at 347.
Even accepting Plaintiff’s assertions that Defendants arbitrarily placed him in
administrative confinement, he fails to plausibly state an Eighth Amendment claim.

The

conditions imposed in “administrative segregation and solitary confinement do not, in and of
themselves, constitute cruel and unusual punishment.” Sheley v. Dugger, 833 F.2d 1420, 1428–
29 (11th Cir. 1987); see also Gholston v. Humphrey, No. 5:12-CV-97-MTT-MSH, 2014 WL
4976248, at *3 (M.D. Ga. Oct. 3, 2014) (dismissing prisoner’s claims that his transfer to SMU
with more restrictive conditions without a “legitimate penological justification” amounts to an
Eighth Amendment violation); Anthony v. Brown, No. CV 113-058, 2013 WL 3778360, at *2
(S.D. Ga. July 17, 2013) (dismissing on frivolity review Eighth Amendment claims based on
conditions of confinement in crisis stabilization unit). As detailed above, an Eighth Amendment
violation requires the prisoner to allege that he is deprived of “the minimal civilized measure of
life’s necessities.”

Rhodes, 452 U.S. at 349.

Plaintiff does not plausibly allege that the

conditions of his confinement in administrative segregation fall below this standard.
Accordingly, the Court should DISMISS Plaintiff’s Eighth Amendment cruel and
unusual punishment claim based upon his placement in administrative confinement.

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VI.

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. Cnty. 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.

3

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

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CONCLUSION
For the above-stated reasons, I RECOMMEND that the Court DISMISS this case 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 pleading 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.

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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 12th day of January,
2017.

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

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