Clayton v. Allen et al

Filing 6

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS without prejudice Plaintiff's 1 Complaint, DIRECT the Clerk to enter the appropriate judgment of dismissal and to CLOSE this case, and DENY Plaintiff leave to proceed i n forma pauperis 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 2/20/2018). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 2/5/2018. (ca)

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

EARNEST BARNARD CLAYTON,
Plaintiff,

CIVIL ACTION NO.: 6:18-cv-5

v.
MARTY C. ALLEN, et al.,
Defendants.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, currently incarcerated at Georgia State Prison in Reidsville, Georgia, filed a
cause of action pursuant to 42 U.S.C. § 1983. (Doc. 1.) Plaintiff seeks leave to proceed in forma
pauperis, (doc. 2), and has filed a Motion to Appoint Counsel, (doc. 3). For the reasons set forth
below, the Court DENIES Plaintiff’s Motion to Proceed in Forma Pauperis and DISMISSES as
moot Plaintiff’s Motion to Appoint Counsel. I RECOMMEND the Court DISMISS without
prejudice Plaintiff’s Complaint, DIRECT the Clerk of Court to enter the appropriate judgment
of dismissal and CLOSE this case, and DENY Plaintiff leave to proceed in forma pauperis on
appeal.
PLAINTIFF’S ALLEGATIONS
Plaintiff’s Complaint, (doc. 1), is nearly identical to many of his other complaints already
determined to be deficient by this Court. See, e.g. Clayton v. Williams, No. 6:17-cv-70 (S.D.
Ga. Dec. 6, 2017); Clayton v. Williams, 6:16-cv-151 (S.D. Ga. Nov. 14, 2017). Plaintiff names
thirty-six (36) Defendants, seventeen (17) of whom are unidentified, and provides a 14-paged
attachment of illegible text to his Complaint form. His Complaint appears to raise many of the

same unrelated issues from his previous complaints such as, inter alia, poor prison sanitation,
lack of due process for his placement in segregation, and failure to protect. (Doc. 1, pp. 6–20.)
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, 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).
The Court looks to the instructions for pleading contained in the Federal Rules of Civil
Procedure when reviewing a Complaint on an application to proceed in forma pauperis. 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 . . . .”) (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 Complaint Pursuant to Section 1915(g)
Plaintiff clearly qualifies as a “three-striker” under 28 U.S.C. § 1915(g) of the Prison

Litigation Reform Act. 28 U.S.C. § 1915(g). This provision states:
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.
28 U.S.C. § 1915(g). Furthermore, 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 Court of Appeals has held to be a “strike-worthy” form of
dismissal under § 1915(g). See Rivera v. Allin, 144 F.3d 719, 723 (11th Cir. 1998); 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”).

Section 1915(g) “requires frequent filer

prisoners to prepay the entire filing fee before federal courts may consider their lawsuits and
appeals.” Rivera, 144 F.3d at 731. 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). 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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A review of Plaintiff=s filing history reveals that he has brought at least three civil actions
or appeals which were dismissed and count as strikes under Section 1915(g). A non-exhaustive
list of these cases includes:
1) Clayton v. Williams, No. 6:17-cv-70 (S.D. Ga. Dec. 6, 2017) (dismissal for failure to
state a claim and failure to follow court order);
2) Clayton v. Williams, No. 6:16-cv-151 (S.D. Ga. Nov. 14, 2017) (dismissal for failure to
state a claim and failure to follow court order);
3) Clayton v. Williams, No. 6:16-cv-174 (S.D. Ga. Mar. 20, 2017) (dismissal for failure to
state a claim and failure to follow court order); and
4) Clayton v. Bryson, No 7:15-cv-164 (S.D. Ga. Sep. 8, 2015) (dismissal for failure to
truthfully disclose litigation history).
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

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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)).
Plaintiff fails to make any “specific allegations” of imminent danger of serious physical
injury, much less any facts supporting such an allegation. Indeed, many of the prison conditions
Plaintiff complains of date back to 2016 and are included in his prior lawsuits. Therefore,
Section 1915(g) bars Plaintiff from proceeding in forma pauperis in this case, and the Court
should DISMISS this case.
II.

Leave to Appeal in Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. 1

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). 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.

1

A certificate of appealablity is not required in this Section 1983 action.
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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. Moreover, as a “three striker”
Plaintiff is not only barred from filing a civil action in forma pauperis, he is also barred from
filing an appeal in forma pauperis while he is a prisoner. Thus, the Court should deny him in
forma pauperis status on appeal.
CONCLUSION
For the aforementioned reasons, the Court DENIES Plaintiff’s Motion to Proceed in
Forma Pauperis, (doc. 2), and DISMISSES as moot Plaintiff’s Motion to Appoint Counsel,
(doc. 3). I RECOMMEND the Court DISMISS without prejudice Plaintiff’s Complaint,
(doc. 1), DIRECT the Clerk of Court to enter the appropriate judgment of dismissal and
CLOSE this case, and DENY Plaintiff leave to proceed in forma pauperis 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. 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.
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 to which
objection are made and may accept, reject, or modify in whole or in part, the findings or

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recommendations made by the Magistrate Judge.

Objections not meeting the specificity

requirement set out above will not be considered by 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 5th day of February,
2018.

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

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