Jamelson v. Unnamed Defendant

Filing 13

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Plaintiff's 9 Amended Complaint, DIRECT the Clerk to CLOSE this case and to enter the appropriate judgment of dismissal, and DENY Plaintiff leave to proceed in forma pau peris on appeal. 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 1/2/2018). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 12/19/2017. (ca)

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

DAVID JAMELSON,
Plaintiff,

CIVIL ACTION NO.: 6:17-cv-103

v.
UNNAMED DEFENDANT; and GEORGIA
STATE PRISON,
Defendants.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, currently incarcerated at Georgia Diagnostic and Classification State Prison in
Jackson, Georgia, filed a cause of action pursuant to 42 U.S.C. § 1983 to contest certain
conditions of his confinement at Georgia State Prison in Reidsville, Georgia. (Doc. 1.) For the
reasons that follow, I RECOMMEND that the Court DISMISS Plaintiff’s Complaint, DIRECT
the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal, and
DENY Plaintiff leave to proceed in forma pauperis on appeal. 1 The Court DENIES Plaintiff’s

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A “district court can only dismiss an action on its own motion as long as the procedure employed is fair.
. . . To employ fair procedure, a district court must generally provide the plaintiff with notice of its intent
to dismiss or an opportunity to respond.” Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1336 (11th Cir. 2011)
(citations and internal quotations marks omitted). A Magistrate Judge’s Report and Recommendation
(“R&R”) provides such notice and opportunity to respond. See Shivers v. Int’l Bhd. of Elec. Workers
Local Union 349, 262 F. App’x 121, 125, 127 (11th Cir. 2008) (indicating that a party has notice of a
district court’s intent to sua sponte grant summary judgment where a magistrate judge issues a report
recommending the sua sponte granting of summary judgment); Anderson v. Dunbar Armored, Inc., 678
F. Supp. 2d 1280, 1296 (N.D. Ga. 2009) (noting that R&R served as notice that claims would be sua
sponte dismissed). This Report and Recommendation constitutes fair notice to Plaintiff that his suit is
barred and due to be dismissed. As indicated below, Plaintiff will have the opportunity to present his
objections to this finding, and the District Court will review de novo properly submitted objections. See
28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72; see also Glover v. Williams, No. 1:12-CV-3562-TWT-JFK,
2012 WL 5930633, at *1 (N.D. Ga. Oct. 18, 2012) (explaining that magistrate judge’s report and
recommendation constituted adequate notice and petitioner’s opportunity to file objections provided a
reasonable opportunity to respond).

Motions to Proceed in Forma Pauperis, (docs. 6, 10), and DISMISSES AS MOOT Plaintiff’s
Motion to Appoint Counsel, (doc. 11).
PLAINTIFF’S ALLEGATIONS
Plaintiff filed his Complaint on July 24, 2017, contesting certain conditions of his
confinement. (Doc. 1.) Concurrent with his Complaint, Plaintiff filed a Motion to Proceed in
Forma Pauperis. The Court deferred ruling on Plaintiff’s Motion, and instead, directed Plaintiff
to amend his Complaint. (Doc. 7.) The Court advised Plaintiff that his Complaint, “in its current
form, fails to state a viable claim and is due to be dismissed.” (Id. at p. 3.) In particular, the
Court noted that Plaintiff only provided conclusory allegations and failed to name any
defendants. (Id.)
Plaintiff filed an Amended Complaint on December 11, 2017. (Doc. 9.) Plaintiff alleges
that “unknown officials” within Georgia State Prison stole his legal materials and “gave it to an
unknown perpetrator who was allowed to go back to court and be released forging my presence.”
(Id. at p. 5.)

Plaintiff lists “Unnamed Defendant” and Georgia State Prison as his only

Defendants.
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.

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§ 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)).
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

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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 . . . .”) (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.”).
DISCUSSION
I.

Claims Against Georgia State Prison
Plaintiff cannot sustain a Section 1983 claim 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. The issue of whether a government entity is capable
of being sued is “determined by the law of the state in which the district court is held.” Fed. R.
Civ. P. 17(b); accord Lawal v. Fowler, 196 F. App’x 765, 768 (11th Cir. 2006). Under Georgia
law, only three classes of legal entities are capable of being named in a lawsuit: “(1) natural
persons; (2) an artificial person (a corporation); and (3) such quasi-artificial persons as the law

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recognizes as being capable to sue.” Id. (citing Ga. Insurers Insolvency Pool v. Elbert Cnty., 368
S.E.2d 500 (Ga. 1988)). Georgia State Prison, as a division of the Georgia Department of
Corrections, is not a separate legal entity capable of being sued. See Georgia Dep’t of Corr.,
Facilities Division, http://www.dcor.state.ga.us/Divisions/Facilities/Corrections, (last visited
Dec. 18, 2017); see also 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.”); 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.”)
Additionally, states and state agencies 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); Miccosukee Tribe of Indians of Fla. v. Fla. State Athletic Comm’n, 226
F.3d 1226, 1231 (11th Cir. 2000).

Section 1983 does not abrogate the well-established

immunities of a state from suit without its consent. Will v. Mich. Dep’t of State Police, 491 U.S.
58, 67 (1989). Because the State of Georgia would be the real party in interest in a suit against
Georgia State Prison, and consequently the Georgia Department of Corrections, the Eleventh
Amendment also bars Georgia State Prison from suit. Id. at pp. 70–71; Alabama v. Pugh, 438
U.S. 781, 782 (1978) (per curiam) (“There can be no doubt, however, that suit against the State
and its Board of Corrections is barred by the Eleventh Amendment unless [the State] has
consented to the filing of such a suit.”); Stevens v. Gay, 864 F.2d 113, 115 (11th Cir. 1989)
(“The Eleventh Amendment bars this action against the Georgia Department of Corrections and

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Board of Corrections.”).

Absent a waiver of that immunity, Plaintiff cannot sustain any

constitutional claims against Georgia State Prison.
Therefore, the Court should DISMISS all claims against Georgia State Prison.
II.

Claims Against Unnamed Defendant
Fictitious party pleading is not proper in federal court. Richardson v. Johnson, 598 F.3d

734, 738 (11th Cir. 2010). However, a limited exception exists “when the Plaintiff’s description
of the defendant is so specific as to be ‘at the very worst, surplusage.’” Id. (citing Dean v.
Barber, 951, F.2d 1210, 1215–1216 (11th Cir. 1992)). In this case, however, Plaintiff fails to
provide any description as to his Unnamed Defendant. Indeed, Plaintiff fails to even mention a
second Defendant when asked to list and provide information for each defendant in the form
Section 1983 Complaint. (Doc. 9, p. 2.) Additionally, to the extent Plaintiff mentions unnamed
individuals in the body of his Amended Complaint, Plaintiff fails to provide any details
regarding their identity or role in the alleged constitutional violations.
Accordingly, the Court should DISMISS all claims against the Unnamed Defendant.
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 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
2

A certificate of appealability is not required in this Section 1983 action.
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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). 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 reasons set forth above, I RECOMMEND that the Court DISMISS Plaintiff’s
Complaint, DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment
of dismissal, and DENY Plaintiff leave to proceed in forma pauperis on appeal. The Court
DENIES Plaintiff’s Motions to Proceed in Forma Pauperis, (docs. 6, 10), and DISMISSES AS
MOOT Plaintiff’s Motion to Appoint Counsel, (doc. 11).
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

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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 Plaintiff.
SO ORDERED and REPORTED and RECOMMENDED, this 19th day of December,
2017.

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

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