Perkins v. Nobilio et al

Filing 8

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS this action for failure to state a claim, DIRECT Clerk to CLOSE this case, and DENY Plaintiff leave to appeal in forma pauperis re 1 Complaint filed by Tyrone Perkins. 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 (Objections to R&R due by 3/31/2017). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 3/17/2017. (ca)

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

TYRONE PERKINS,
Plaintiff,

CIVIL ACTION NO.: 6:17-cv-1

v.
OFFICER NOBILIO; and LT. EPPERSON,
Defendants.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, an inmate at Georgia State Prison in Reidsville, Georgia, submitted a Complaint
pursuant to 42 U.S.C. § 1983, contesting certain conditions of his confinement. (Doc. 1.) The
Court has conducted an initial review of Plaintiff’s Complaint, as required by 28 U.S.C.
§ 1915A. For the reasons which follow, I RECOMMEND that the Court DISMISS Plaintiff’s
Complaint for failure to state a claim, DIRECT the Clerk of Court to CLOSE this case, and
DENY Plaintiff leave to appeal in forma pauperis.
BACKGROUND 1
In his Complaint, Plaintiff alleges that he was taken from his cell to the crisis unit to
address a mental issue on August 25, 2016. (Doc. 1, p. 7.) During Plaintiff’s stay in the crisis
unit, Defendant Officer Nobilio packed up Plaintiff’s belongings and misplaced a portion of
those belongings. (Id.) As a result, when Plaintiff returned from the crisis unit, Defendant
Officer Epperson issued only part of Plaintiff’s belongings back to him. (Id.) Plaintiff contends
that he lost 426 personal photos, in addition to other unspecified items which were lost or stolen.
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The facts set forth below are taken from Plaintiff’s Complaint are accepted as true, as they must be at
this stage.

(Id. at p. 8.) He requests compensation for these items or, in the alternative, that Defendants
replace his property. (Id.)
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 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.”).

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DISCUSSION
I.

Dismissal of Claims Relating to Loss of Property
Plaintiff claims that Defendant Officer Nobilio misplaced Plaintiff’s personal property

and failed to return it to him. (Doc. 1, p. 7.) Plaintiff alleges that Defendant Officer Epperson is
similarly responsible for the loss of his property because she is the officer-in-charge of inmate
property. (Id.) Plaintiff alleges that he filed a grievance regarding the loss of his property, but
that grievance was rejected as untimely. (Id. at p. 4.)
Plaintiff’s claims implicate his right to procedural due process. A Section 1983 action
alleging a procedural due process clause violation requires proof of three elements: “(1) a
deprivation of a constitutionally-protected liberty or property interest; (2) state action; and
(3) constitutionally inadequate process.” Doe v. Fla. Bar, 630 F.3d 1336, 1342 (11th Cir. 2011)
(quoting Cryder v. Oxendine, 24 F.3d 175, 177 (11th Cir. 1994)). As to the third element, it is
recognized that “[d]ue process is a flexible concept that varies with the particular situation.”
Cryder, 24 F.3d at 177.
Moreover, determining whether due process is satisfied requires consideration of three
distinct factors:
First, the private interest that will be affected by the official action; second, the
risk of an erroneous deprivation of such interest through the procedures used, and
the probable value, if any, of additional or substitute procedural safeguards; and
finally, the government’s interest, including the function involved and the fiscal
and administrative burdens that the additional or substitute procedural
requirement would entail.
Id. at 178 (quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).
However, even if a state actor has continued to wrongfully retain a person’s personal
property, “no procedural due process violation has occurred if a meaningful postdeprivation
remedy for the loss is available.” Case v. Eslinger, 555 F.3d 1317, 1331 (11th Cir. 2009)

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(quoting Lindsey v. Storey, 936 F.2d 554, 561 (11th Cir. 1991)). “[T]he state’s action is not
complete until and unless it provides or refuses to provide a suitable postdeprivation remedy.”
Hudson v. Palmer, 468 U.S. 517, 533 (1984).
Georgia law provides a postdeprivation remedy through an action for conversion of
personal property, which “is a sufficient postdeprivation remedy when it extends to unauthorized
seizures of personal property by state officers.” Case, 555 F.3d at 1331. This claim arises under
O.C.G.A. § 51–10–1. Lindsey, 936 F.2d at 561. This statute provides that “[t]he owner of
personalty is entitled to its possession,” and “[a]ny deprivation of such possession is a tort for
which an action lies.” O.C.G.A. § 51-10-1. The Eleventh Circuit has noted that, “[t]his statutory
provision covers the unauthorized seizure of personal property by police officers. Therefore, the
state has provided an adequate postdeprivation remedy when a plaintiff claims that the state has
retained his property without due process of law.” Lindsey, 936 F.2d at 561 (quoting Byrd v.
Stewart, 811 F.2d 554, 555 n.1 (11th Cir. 1987) (per curiam)); see also Allen v. Peal, No. CV
312-007, 2012 WL 2872638, at *2–3 (S.D. Ga. June 18, 2012) (dismissing a due process claim
for lost or seized personal property because O.C.G.A. § 51-10-1 provides an adequate postdeprivation remedy).
Consequently, Plaintiff’s claims regarding the alleged deprivation of his property
comprise a matter for determination by the courts of the State of Georgia. Therefore, Plaintiff
may not present his claims to this Court under Section 1983. Accordingly, I RECOMMEND
that the Court DISMISS Plaintiff’s Complaint for failure to state a claim.

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II.

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 taken 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
him in forma pauperis status on appeal.
CONCLUSION
For the reasons set forth above, I RECOMMEND that the Court DISMISS this action
for failure to state a claim, DIRECT the Clerk of Court to 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 non-habeas 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 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 17th day of March,
2017.

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

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