Clayton v. Davidson et al

Filing 5

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS without prejudice Plaintiff's 1 Complaint, DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal, and DENY Plaintiff in forma pau peris status 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 3/27/2018). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 3/13/2018. (csr)

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

EARNEST BARNARD CLAYTON,
Plaintiff,

CIVIL ACTION NO.: 6:17-cv-149

v.
DAVIDSON, et al.,
Defendants.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, an inmate at Georgia State Prison in Reidsville, Georgia, filed a cause of action
pursuant to 42 U.S.C. § 1983. (Doc. 1.) Along with his Complaint, Plaintiff filed a Motion for
Leave to Proceed in Forma Pauperis and a Motion to Appoint Counsel. (Docs. 2, 4.) For the
reasons which follow, the Court DENIES Plaintiff’s Motion for Leave to Proceed in Forma
Pauperis and DISMISSES as moot his Motion to Appoint Counsel. For these same reasons, I
RECOMMEND the Court DISMISS without prejudice Plaintiff’s Complaint pursuant to 28
U.S.C. § 1915(g), DIRECT the Clerk of Court to CLOSE this case and enter the appropriate
judgment of dismissal, and DENY Plaintiff in forma pauperis status on appeal. 1
1

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 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. Jan. 8, 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 a report and recommendation
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 presiding district judge
will review de novo properly submitted objections. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72;

BACKGROUND
In this Complaint, Plaintiff sets forth allegations regarding events occurring from May
2015 through November 2016. (Doc. 1, pp. 6–18.) Specifically, Plaintiff contends he submitted
grievances between May 1, 2015, and November 27, 2015, in which he named all Defendants as
the people who had subjected him to the conditions of his confinement while he was housed in
an administrative segregation dormitory. (Id. at p. 6.) Plaintiff asserts, beginning in early
December 2015 and continuing through November 3, 2016, he was kept in the administrative
segregation Tier II program after he completed all phases and was denied access to programs
inmates in the general population had as retaliation for the filing of these grievances. (Id. at
pp. 6, 11–12.) According to Plaintiff, each Defendant engaged in a “campaign” “of retaliation
and intimidation or harressment [sic]” against him. (Id. at p. 6.) Plaintiff asserts Defendant
Hutcheson came to his cell on December 1, 2015, and November 3, 2016, and told Plaintiff
“they” would make sure he never made parole, that other inmates would kill him, and he would
stay in administrative segregation “forever” since he filed his grievances. (Id. at pp. 16, 17.)
As an example, Plaintiff asserts he was denied protection against certain groups of
inmates, many of whom are or were gang members. (Id. at pp. 6, 10.) Plaintiff also asserts that,
upon his arrival in administrative segregation in early “2015 or 2016”, the tray box on his cell
door was contaminated with rotten and spoiled food, dirt, rust, glass, and feces, and he was
denied cleaning supplies. (Id. at pp. 7, 15.) During this same time period, Plaintiff contends he
was made to endure very cold temperatures inside the administrative segregation dorm due to
broken windows in that dorm. Plaintiff also contends he was not given the requisite state-issued

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).

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blankets, jacket, or boots to help him deal with these cold temperatures. (Id. at pp. 7, 14.)
Moreover, during this same time period, Plaintiff avers mice or rats were in the dorm and left
feces behind on at least ten (10) occasions. 2 (Id. at p. 7.) Plaintiff maintains all of these
conditions posed a serious risk to his health.
Plaintiff contends Defendants exposed him to assaults and serious threats at the hands of
his cell mate upon his arrival in administrative segregation. Plaintiff also contends his cell mate
cut him with a razor and assaulted him with items in a sock on November 3, 2016. (Id. at p. 9.)
Plaintiff asserts his injuries from this assault needed to be sutured.
STANDARD OF REVIEW
Plaintiff has brought this action, seeking to proceed 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, 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, 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).

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Plaintiff again notes a mice or rat infestation beginning in December 2015 or January or February 2016,
and he then states this infestation lasted “through a time after November 21, 2017.” (Doc. 1, p. 12.) The
Court addresses this allegation in Section I of this Report, infra, at n.6.
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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
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.

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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.”).
DISCUSSION
I.

Dismissal Under Section 1915(g)
A prisoner such as Plaintiff attempting to proceed in forma pauperis in a civil action in

federal court must comply with the mandates of the Prison Litigation Reform Act (“PLRA”).
Pertinently, 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.
The Eleventh Circuit Court of Appeals has explained that “[t]his provision of the PLRA,
‘commonly known as the ‘three strikes’ provision,’ requires frequent filer prisoners to prepay the
entire filing fee before federal courts may consider their lawsuits and appeals.” Rivera v. Allin,
144 F.3d 719, 723 (11th Cir. 1998) (quoting Lyon v. Krol, 127 F.3d 763, 764 (8th Cir. 1997)). 3
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 Section 1915(g). See id. at 731 (dismissal
3

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 an inmate’s rights to access to the courts, to due process
of law, or to equal protection, or the doctrine of separation of powers. Rivera, 144 F.3d at 721–27.
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for failure to disclose prior litigation is “precisely the type of strike that Congress envisioned
when drafting section 1915(g)”); 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”).
The Eleventh Circuit has held that a prisoner barred from proceeding in forma pauperis
due to the “three strikes” provision in § 1915(g) must pay the entire filing fee 4 when he initiates
suit. Vanderberg v. Donaldson, 259 F.3d 1321, 1324 (11th Cir. 2001). Therefore, the proper
procedure for a district court faced with a prisoner who seeks in forma pauperis status but is
barred by the “three strikes” provision is to dismiss the complaint without prejudice. Dupree v.
Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002).
A review of Plaintiff’s history of filings reveals that he indeed has brought at least three
civil actions or appeals which count as strikes under Section 1915(g): (1) R. & R. and Order,
Clayton v. Williams, 6:16-cv-174 (S.D. Ga. Feb. 20 & Mar. 20, 2017), ECF Nos. 7, 10
(dismissing complaint for failure to state a claim and for failure to follow Court order); (2) R. &
R. and Order, Clayton v. Williams, 6:16-cv-151 (S.D. Ga. May 12 & Nov. 14, 2017), ECF Nos.
12, 15 (dismissing complaint for failure to state a claim and for failure to follow Court order); 5
and (3) Mandate, Clayton v. Williams, No. 17-11470-F (11th Cir. Sept. 27, 2017) (appeal
dismissed as frivolous).
4

The applicable filing fee is now $400.00. “The entire fee to be paid in advance of filing a civil
complaint is $400. That fee includes a filing fee of $350 plus an administrative fee of $50, for a total of
$400. A prisoner who is granted in forma pauperis status will, instead, be assessed a filing fee of $350
and will not be responsible for the $50 administrative fee. A prisoner who is denied in forma pauperis
status must pay the full $400, including the $350 filing fee and the $50 administrative fee, before the
complaint will be filed.” Callaway v. Cumberland Cty. Sheriff Dep’t, No. CIV. 14-4853 NLH, 2015 WL
2371614, at *1 (D.N.J. May 18, 2015); see also Owens v. Sec’y Fla. Dep’t of Corr., Case No.:
3:15cv272/MCR/EMT, 2015 WL 5003649 (N.D. Fla. Aug. 21, 2015) (noting that the filing fee applied to
cases in which a prisoner-plaintiff is denied in forma pauperis status is $400.00).
5

While this Court dismissed Plaintiff’s complaints without prejudice in these two cited cases based on
Plaintiff’s failure to state a claim and failure to follow the orders of the Court, both reasons for dismissal
are “strike-worthy”. 28 U.S.C. § 1915(g); see also Malautea, 987 F.2d at 1544.
6

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)). Moreover, a harm that has already occurred or danger that has now passed cannot justify
skirting the three strike bar.

Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999)

(“prisoner’s allegation that he faced imminent danger sometime in the past is an insufficient
basis to allow him to proceed in forma pauperis pursuant to the imminent danger exception to
the statute.”); see also Abdul-Akbar v. McKelvie, 239 F.3d 307, 315 (3d Cir. 2001) (“By using
the term ‘imminent,’ Congress indicated that it wanted to include a safety valve for the ‘three
strikes’ rule to prevent impending harms, not those harms that had already occurred.”).
Plaintiff should not be excused from prepaying the filing fee under the imminent danger
of serious physical injury exception.

Plaintiff makes no allegation in his Complaint that

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Defendants’ alleged actions pose a serious risk of imminent physical danger. Instead, Plaintiff
maintains that he is in imminent danger of serious physical harm based on events allegedly
occurring no later than November 2016. (Doc. 1.) Additionally, Plaintiff makes no allegations
that he actually faced this danger at the time he signed his Complaint on November 21, 2017. 6
Therefore, Section 1915(g) bars Plaintiff from proceeding in forma pauperis in this case. Should
Plaintiff choose to prosecute these claims while incarcerated, he must file a separate cause of
action and pay the full filing fee.
II.

Leave to Appeal in Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. 7

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

6

Plaintiff’s Complaint is undated. (Doc. 1, p. 19.) However, he filed his Complaint on the same date as
his Motion for Leave to Proceed in Forma Pauperis and his Motion to Appoint Counsel, both of which
are dated November 21, 2017, (doc. 2, p. 2; doc. 4), and which appear to have been sent in the same
envelope as Plaintiff’s Complaint, (doc. 1, p. 20). Thus, the Court considers November 21, 2017, to be
the date Plaintiff’s Complaint is dated. The Court notes Plaintiff’s assertion that an infestation of rats or
mice and cockroaches lasted through “a time after November 21, 2017.” (Doc. 1, p. 12.) Since Plaintiff’s
Complaint is dated November 21, 2017, he could not logically include events occurring at a time after the
date of his Complaint in an effort to show he was in imminent danger of serious physical injury at the
time he filed his Complaint. Even if Plaintiff could include such an allegation in his Complaint, however,
it appears any such allegation would be dismissed based on Plaintiff’s failure to exhaust his
administrative remedies. Bradley v. Jackson, Civil Action No.: 5:13-cv-127, 2016 WL 1175280 (S.D.
Ga. Mar. 24, 2016) (setting forth the Georgia Department of Corrections’ grievance procedures and
finding plaintiff’s failure to follow those procedures constitutes the failure to exhaust administrative
remedies), report and recommendation adopted by 2016 WL 2889051 (S.D. Ga. May 17, 2016). Thus,
even if Plaintiff met the imminent danger exception, it is clear from the face of his Complaint this claim
would be subject to dismissal due to Plaintiff’s failure to exhaust his administrative remedies. This
provides an alternative ground for dismissal of Plaintiff’s Complaint.
7

A certificate of appealability is not required in this Section 1983 action.
8

context must be judged by an objective standard. Busch v. County 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). 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. Additionally, Plaintiff’s status
as a three-striker prevents him from filing an appeal in forma pauperis, just as it prevents him
from proceeding in forma paupers in this action. Thus, the Court should DENY him in forma
pauperis status on appeal.
CONCLUSION
For the reasons set forth above, the Court DENIES Plaintiff’s Motion for Leave to
Proceed in Forma Pauperis and DISMISSES as moot Plaintiff’s Motion to Appoint Counsel.
(Docs. 2, 4.) Additionally, I RECOMMEND that the Court DISMISS without prejudice
Plaintiff’s Complaint pursuant to 28 U.S.C. § 1915(g), DIRECT the Clerk of Court to CLOSE
this case and enter the appropriate judgment of dismissal, 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

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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 Plaintiff.
SO ORDERED and REPORTED and RECOMMENDED, this 13th day of March,
2018.

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

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