MITCHELL v. EMANUEL PROBATION et al

Filing 11

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS without prejudice Plaintiff's 6 Complaint, DIRECT the Clerk to enter the appropriate judgment of dismissal and CLOSE this case, and DENY Plaintiff leave to proceed in f orma 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 6/14/2018). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 5/31/2018. (ca)

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

WILLIAM G. MITCHELL,
Plaintiff,

CIVIL ACTION NO.: 6:18-cv-43

v.
EMANUEL PROBATION, et al.,
Defendants.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, currently incarcerated at Autry State Prison in Pelham, Georgia, filed a cause of
action pursuant to 42 U.S.C. § 1983 contesting certain events that occurred in Emanuel County,
Georgia. (Doc. 6.) Plaintiff seeks leave to proceed in forma pauperis, (doc. 4). For the reasons
set forth below, the Court DENIES Plaintiff’s Motion to Proceed in Forma Pauperis.
Additionally, 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. 1

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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. 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 the R&R served as notice that claims would be sua
sponte dismissed). This R&R 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 conduct a de novo review of 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-TWTJFK, 2012 WL 5930633, at *1 (N.D. Ga. Oct. 18, 2012) (explaining that magistrate judge’s R&R
constituted adequate notice and petitioner’s opportunity to file objections provided a reasonable

PLAINTIFF’S ALLEGATIONS
Plaintiff appears to contest the events relating to his arrest and conviction in July and
August 2014. (Doc. 6, pp. 5–9.) Plaintiff alleges that he was wrongfully convicted and a victim
of a concerted plot by Defendants Matthew and Melody Mitchell to send him to prison and steal
his belongings. (Id. at p. 8.) Plaintiff seeks release from prison, though he clearly states that this
Complaint is “not a[] habeas issue due to the level of corruption in the system,” and seeks “at
least a million” dollars to compensate his mental, physical, and emotional injury. (Id. at p. 9.)
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.

opportunity to respond). Additionally, this R&R provides Plaintiff the opportunity to amend his
Complaint to correct the deficiencies noted herein. See Fed. R. Civ. P. 15. Should Plaintiff seek to
amend his Complaint, he must file the amendment within fourteen (14) days from the date of this R&R.

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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,

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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 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, 731 (11th Cir. 1998) (dismissing
for abuse of judicial process “is precisely the type of strike Congress envisioned”); 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 723 (citation omitted). 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

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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.
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):
1) Mitchell v. Williams, No. 6:17-cv-57 (S.D. Ga. July 25, 2017) (dismissal for abuse of
judicial process by failing to truthfully disclose litigation history);
2) Mitchell v. Emanuel Probation, No. 6:17-cv-56 (S.D. Ga. July 25, 2017) (dismissal for
abuse of judicial process by failing to truthfully disclose litigation history); and
3) Mitchell v. Burse, No. 1:16-cv-199 (M.D. Ga. Mar. 20, 2017) (dismissal for failure to
state a claim).
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, the events Plaintiff complains
of occurred in 2014.

Therefore, Section 1915(g) bars Plaintiff from proceeding in forma

pauperis in this case, and the Court should DISMISS this case.
II.

Dismissal for Abuse of Judicial Process
Additionally, the Court should dismiss Plaintiff’s Complaint because he failed to

truthfully disclose his litigation history. In his Complaint, Plaintiff indicated that he only had
one pending lawsuit in federal Court. (Doc. 6, pp. 2–3.) Furthermore, the Complaint form asks
Plaintiff whether “AS TO ANY LAWSUIT FILED IN ANY FEDERAL COURT . . . any suit
dismissed on the ground that it was frivolous, malicious, or failed to state a claim.” (Id. at p. 3.)
Plaintiff clearly checked the box marked “No.” (Id.) However, the case management system
shows, as detailed above in Section I, that Plaintiff has brought several actions and appeals while
incarcerated, at least one of which was dismissed for failing to state a claim.
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, 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
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

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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 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.”).

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Another district court in this Circuit explained the importance of this information as
follows:
[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
resources.
Brown v. Saintavil, No. 2:14-CV-599-FTM-29, 2014 WL 5780180, at *3 (M.D. Fla. Nov. 5,
2014) (emphasis omitted).
In his Complaint, Plaintiff misrepresented his litigation history notwithstanding the fact
that many of his cases were only recently resolved. Furthermore, at least two of these cases were
dismissed for failing to truthfully disclose his litigation history. 2 Despite the Court previously
sanctioning Plaintiff for such behavior, Plaintiff willfully continued to file a misleading
Complaint. As this Court previously informed Plaintiff, such lack of candor is intolerable, and
consequently, the Court should also DISMISS this action for Plaintiff’s failure to truthfully
disclose his litigation history.
III.

Leave to Appeal in Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. 3

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”).
2

While Plaintiff did disclose Emanuel County Probation, No. 6:17-cv-56, he listed it as a pending action
and failed to report that it was actually dismissed for failure to truthfully disclose his litigation history.
3

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

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.
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. 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 Recommendation.
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
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 31st day of May, 2018.

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

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