United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
plaintiff Eddie Lee Sellers, Jr. brings this 42 U.S.C. §
1983 case against two police officers. Doc. 6. His
Statement of Claim (unedited, and in its entirety):
On the 21st day of July I was falsely accused and arrested
for possession of firearm, reckless conduct and criminal
trespass at 506B Emerald dr. That wasn't my home. I was
visiting. Shanice Matthews was the owner of the house.
Officer David Gratton with his assisting officer Justin
Jenkins came without a warrant at about 10:15 p.m. searched
the frigerator found a gun after pulling me and two other
people out of the house. Comes out with it and say its mine
which wasn't true. The owner Shanice Matthews asked about
the warrant and it wasn't on hand. I was then transported
to precient 2 where I received defected warrants consist of
my name being wrong, birth date and also no notary and the
search warrant was the same without the owners name on it.
Doc. 6 at 5.
"would like for justice to be served and I would like to
be compensated for my pain and suffering and losses."
Doc. 6 at 6 ("Relief). He neglects to inform this Court,
however, that he is being prosecuted for felony possession of
a firearm by a convicted felon, criminal trespass
(misdemeanor) and reckless conduct (misdemeanor).
See attached state court docket sheet.
docket shows that he was indicted, which sinks any
invalid-arrest claim (to the extent he may be said to raise
one). "[T]he Supreme Court has held that probable cause
is established by an indictment returned by a federal grand
jury." Kalina v. Fletcher, 522 U.S. 118, 130
(1997); see also Park Manor Ltd. v. U.S. Dept. of Health
and Human Services, 495 F.3d 433, 437 (7th Cir. 2007)
(finding 'an indictment establishes probable cause to
believe the defendant [is] guilty of crime, and no more is
required to justify instituting a criminal
proceeding.')." United States v. Anzaldi,
2013 WL 393326 at * 4 (N.D. 111. Jan. 31, 2013).
own allegations show that he has no standing to complain
about a search of, and thus the privacy interest violated in,
someone else's home. See, e.g., Rakas v.
Illinois, 439 U.S. 128, 134 (1978) ("A person who
is aggrieved by an illegal search and seizure only through
the introduction of damaging evidence secured by a search of
a third person's premises or property has not had any of
his Fourth Amendment rights infringed."); United
States v. Garcia, 741 F.2d 363, 366 (11th Cir. 1984)
("[M]ere presence in the apartment would not be enough
to give [Sellers] standing, for the precedents binding on
this court require that an occupant other than the owner or
lessee of an apartment demonstrate a significant and current
interest in the searched premises in order to establish an
expectation of privacy.").
its facial frivolity, plaintiffs Complaint must be DISMISSED
WITH PREJUDICE with no re-pleading option warranted.
Dysart v. BankTrust, 516 F.App'x 861, 865 (11th
Cir. 2013) ("[D]istrict court did not err in denying
Dysart's request to amend her complaint because an
amendment would have been futile."); Langlois v.
Traveler's Ins. Co., 401 F.App'x 425, 426-27
(11th Cir. 2010); Simmons v. Edmondson, 225
F.App'x 787, 788-89 (11th Cir. 2007) (district court did
not err in dismissing complaint with prejudice without first
giving plaintiff leave to amend because no amendment could
have overcome the defendants' immunity). And because of
its frivolity, this case should be recorded as a
"strike" under 28 U.S.C. §
plaintiff must pay his $350 filing fee. His furnished account
information shows that he has had a $16.67 average monthly
balance and $0.02 in monthly deposits in his prison account
during the past three months. Doc. 7 at 1. He therefore owes
a $3.33 initial partial filing fee. See 28 U.S.C.
§ 1915(b)(1) (requiring an initial fee assessment
"when funds exist, " under a specific 20 percent
formula). His custodian (or designee) shall set aside 20
percent of all future deposits from his account and forward
same to the Clerk each time the set aside amount reaches
$10.00, until the balance of the Court's $350.00 filing
fee has been paid in full.
Clerk is DIRECTED to send this Report and Recommendation
(R&R) to Sellers' account custodian immediately. In
the event he is transferred to another institution,
plaintiffs present custodian shall forward a copy of this
R&R and all financial information concerning payment of
the filing fee and costs in this case to plaintiffs new
custodian. The balance due from the plaintiff shall be
collected by the custodian at his next institution in
accordance with the terms of this R&R.
R&R is submitted to the district judge assigned to this
action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this
Court's Local Rule 72.3. Within 14 days of service, any
party may file written objections to this R&R with the
Court and serve a copy on all parties. The document should be
captioned "Objections to Magistrate Judge's Report
and Recommendations." Any request for additional time to
file objections should be filed with the Clerk for
consideration by the assigned district judge.
the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district
judge. The district judge will review the magistrate
judge's findings and recommendations pursuant to 28
U.S.C. § 636(b)(1)(C). The parties are advised that
failure to timely file objections will result in the waiver
of rights on appeal. 11th Cir. R. 3-1; see Symonett v.
V.A. Leasing Corp., 648 F.App'x 787, 790 (11th Cir.
2016); Mitchell v. U.S., 612 F.App'x 542, 545
(11th Cir. 2015).
REPORTED AND RECOMMENDED