Smith v. Coleman et al
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 Plailntiff leave to p roceed in forma pauperis 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 4/30/2018). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 4/16/2018. (csr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
RENARDA JERMAL SMITH,
CIVIL ACTION NO.: 6:17-cv-169
JEFF COLEMAN; ANDREW MCFARLANE;
and KELLY MCCUMBER,
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, who is currently housed at Rogers State Prison in Reidsville, Georgia, filed a
cause of action, pursuant to 42 U.S.C. § 1983, contesting certain conditions of his confinement.
(Doc. 1.) Plaintiff filed a Declaration in Support of Motion to Proceed in Forma Pauperis, (doc.
2), which the Court construed as a Motion to Proceed in Forma Pauperis. (Doc. 4.) The Court
deferred ruling on Plaintiff’s Motion and directed Plaintiff to re-submit his motion on this
Court’s preferred form. Plaintiff then filed a Motion to Proceed in Forma Pauperis. (Doc. 6.)
For the reasons which follow, the Court DENIES Plaintiff’s Motions. For these same reasons, I
RECOMMEND that the Court DISMISS without prejudice 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
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. 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
In his Complaint, Plaintiff asserts he had an asthma attack during the middle of the night.
Plaintiff contends there are no panic buttons in the cells or any other way to obtain assistance
from officers at Rogers State Prison. (Doc. 1, p. 5.) In addition, Plaintiff avers there are no
sprinklers in the cells and no evacuation routes posted in the dormitory. Plaintiff maintains he
informed Defendants of these conditions, yet they failed to take corrective action. (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
sua sponte granting of summary judgment); Anderson v. Dunbar Armored, Inc., 678 F. Supp. 2d 1280,
1296 (N.D. Ga. 2009) (noting that 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 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; 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). Additionally, Plaintiff has the opportunity to amend his Complaint to correct the
deficiencies noted in this Report and Recommendation. See Fed. R. Civ. P. 15. Should Plaintiff seek to
amend his Complaint, he must file any desired amendment within fourteen (14) days from the date of
this Report and Recommendation.
or which seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.
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.
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.”).
Dismissal for Abuse of Judicial Process
The Complaint form directly asks Plaintiff whether he has “brought any lawsuits in
federal court” “[w]hile incarcerated or detained in any facility” prior to his current filing.
(Doc. 1, p. 2.) Plaintiff marked the blank for “No”. (Id.) However, a search of Plaintiff’s
litigation history reveals that he has filed at least one other cause of action prior to executing his
Complaint on December 29, 2017: Compl., Smith v. U.S. Dist. Court for the N. Dist. of Ga.,
4:17-cv-00213 (N.D. Ga. Sept. 18, 2017), ECF No. 1. 2
As previously stated, Section 1915 requires a court to dismiss a prisoner’s action if, at
any time, the court determines that it is frivolous or malicious, fails to state a claim, or seeks
relief from an immune defendant. 28 U.S.C. § 1915(e)(2)(B). Significantly, “[a] finding that the
plaintiff engaged in bad faith litigiousness or manipulative tactics warrants dismissal” under
Plaintiff’s Complaint was administratively closed after the Northern District of Georgia court observed
that “sovereign citizen” legal theories—as Plaintiff set forth in that cause of action—are frivolous. R. &
R. and Order, Smith v. U.S. Dist. Court for the N. Dist. of Ga., (N.D. Ga. Sept. 18 and Oct. 2, 2017), ECF
Nos. 2, 5.
Section 1915. Redmon v. Lake Cty. Sheriff’s Office, 414 F. App’x 221, 225 (11th Cir. 2011)
(alteration in original) (quoting Attwood v. Singletary, 105 F.3d 610, 613 (11th Cir. 1997)). In
addition, Federal Rule of Civil Procedure 11(c) permits a court to impose sanctions, including
dismissal, for “knowingly fil[ing] a pleading that contains false contentions.” Id. at 225–26
(citing Fed. R. Civ. P. 11(c)). Again, although pro se pleadings are to be construed liberally, “a
plaintiff’s pro se status will not excuse mistakes regarding procedural rules.” Id. at 226.
Relying on this authority, the Court of Appeals for the Eleventh Circuit has consistently
upheld the dismissal of cases where a pro se prisoner plaintiff has failed to disclose his previous
lawsuits as required on the face of the Section 1983 complaint form. See, e.g., Redmon, 414 F.
App’x at 226 (pro se prisoner’s nondisclosure of prior litigation in Section 1983 complaint
amounted to abuse of judicial process resulting in sanction of dismissal); Shelton v. Rohrs, 406
F. App’x 340, 341 (11th Cir. 2010) (same); Young v. Sec’y Fla. for Dep’t of Corr., 380 F. App’x
939, 941 (11th Cir. 2010) (same); Hood v. Tompkins, 197 F. App’x 818, 819 (11th Cir. 2006)
(same). Even where the prisoner has later provided an explanation for his lack of candor, the
Court has generally rejected the proffered reason as unpersuasive. See, e.g., Redmon, 414 F.
App’x at 226 (“The district court did not abuse its discretion in concluding that Plaintiff’s
explanation for his failure to disclose the Colorado lawsuit—that he misunderstood the form—
did not excuse the misrepresentation and that dismissal was a proper sanction.”); Shelton, 406 F.
App’x at 341 (“Even if [the plaintiff] did not have access to his materials, he would have known
that he filed multiple previous lawsuits.”); Young, 380 F. App’x at 941 (finding that not having
documents concerning prior litigation and not being able to pay for copies of same did not
absolve prisoner plaintiff “of the requirement of disclosing, at a minimum, all of the information
that was known to him”); Hood, 197 F. App’x at 819 (“The objections were considered, but the
district court was correct to conclude that to allow [the plaintiff] to then acknowledge what he
should have disclosed earlier would serve to overlook his abuse of the judicial process.”).
Another district court in this Circuit has explained the importance of this information as
[t]he inquiry concerning a prisoner’s prior lawsuits is not a matter of idle
curiosity, nor is it an effort to raise meaningless obstacles to a prisoner’s access to
the courts. Rather, the existence of prior litigation initiated by a prisoner is
required in order for the Court to apply 28 U.S.C. § 1915(g) (the “three strikes
rule” applicable to prisoners proceeding in forma pauperis). Additionally, it has
been the Court’s experience that a significant number of prisoner filings raise
claims or issues that have already been decided adversely to the prisoner in prior
litigation. . . . Identification of prior litigation frequently enables the Court to
dispose of successive cases without further expenditure of finite judicial
Brown v. Saintavil, No. 2:14-CV-599-FTM-29, 2014 WL 5780180, at *3 (M.D. Fla. Nov. 5,
2014) (emphasis omitted).
Plaintiff misrepresented his litigation history in his Complaint. The plain language of the
Complaint form is clear, and Plaintiff failed to answer fully and truthfully. 3 (Doc. 1, p. 2.) This
Court will not tolerate such lack of candor, and consequently, the Court should DISMISS this
action, without prejudice, for Plaintiff’s failure to truthfully disclose his full litigation history,
as required. 4
The Court could also dismiss Plaintiff’s Complaint for failure to exhaust his administrative remedies
prior to the filing of his Complaint. Plaintiff admits he was still awaiting a response to his grievance and
that he did not file an appeal. (Doc. 1, pp. 3–4.) When a prisoner admits in his complaint that he has not
exhausted the grievance process, dismissal is warranted. See Okpala v. Drew, 248 F. App’x 72 (11th Cir.
2007); Cole v. Ellis, No. 5:10-CV-00316-RS-GRJ, 2010 WL 5564632, at *3 (N.D. Fla. Dec. 28, 2010);
Rashid v. Liberty Cty. Jail, CV410-092, 2010 WL 3239241 at *1 n.1 (S.D. Ga. May 3, 2010) (“Nothing
in Jones[ v. Bock, 549 U.S. 1999 (2007),] . . . forbids the Court from dismissing a complaint pursuant to §
1997e(a) if it is clear from the face of the complaint that the prisoner has not exhausted all administrative
remedies available to him.”).
The Court notes that, in some cases, a dismissal without prejudice can be tantamount to a dismissal with
prejudice. Appeal Op., Jenkins v. Hutcheson, 6:16-cv-59 (S.D. Ga. Jan. 11, 2018), ECF No. 21, p.4 n.1.
However, it does not appear that Plaintiff’s case presents such a situation.
Leave to Appeal in Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. 5
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. 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. Thus, the Court should DENY
Plaintiff in forma pauperis status on appeal.
For the reasons set forth above, I DENY Plaintiff’s Motions to Proceed in Forma
Pauperis. (Docs. 2, 6.) For these same reasons, I RECOMMEND the Court DISMISS without
A certificate of appealability is not required in this Section 1983 action.
prejudice Plaintiff’s Complaint, 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
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. However, Plaintiff may
amend the Complaint to cure any deficiencies noted in this Report and Recommendation. See
Fed. R. Civ. P. 15. Should Plaintiff seek to amend the Complaint, Plaintiff must file the
amended complaint within fourteen (14) days from the date of this Report and
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 16th day of April,
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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