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Daker v. United States

United States District Court, S.D. Georgia, Statesboro Division

May 26, 2017

WASEEM DAKER, Plaintiff,
v.
UNITED STATES OF AMERICA; BRIAN CHRISTOPHER JOHNSON; and BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES, Defendants.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, an inmate at Georgia State Prison in Reidsville, Georgia, filed this action pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346 and 2670, et seq., and Bivens v. Six Unknown Federal Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), in the United States District Court for the District of Columbia on April 16, 2015. (Doc. 1.) Plaintiff executed his Complaint on February 1, 2015. (Id.) Along with his Complaint, Plaintiff filed a Motion to Proceed in Forma Pauperis. (Doc. 2.) The case was transferred to this Court. (Doc. 4.) On May 13, 2015, this Court granted Plaintiff's Motion to Proceed in Forma Pauperis. (Doc. 6.) However, this Court later noted that a prisoner proceeding in a civil action against officers or employees of government entities must comply with the mandates of the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915. (Doc. 10, p. 1.) After further review, the Court denied Plaintiff's Motion to Proceed in Forma Pauperis, (doc. 9). Additionally, I recommended that the Court dismiss Plaintiff's Complaint, without prejudice, pursuant to 28 U.S.C. § 1915(g) and that the Court deny Plaintiff in forma pauperis status on appeal. (Doc. 10.) Plaintiff filed Objections to this Report and Recommendation, arguing that he does not have any “strikes” within the meaning of Section 1915(g). (Doc. 13.) Prior to the entry of an order disposing of the Report and Recommendation, the Honorable J. Randal Hall issued an Order staying this action until the Eleventh Circuit Court of Appeals resolved an appeal Daker had filed with that Court in an unrelated case. (Doc. 16.) The Eleventh Circuit has issued an opinion regarding Plaintiff's appeal. Daker v. Commissioner, Georgia Department of Corrections, 820 F.3d 1278 (11th Cir. 2016). Chief Judge Hall has now lifted the previously-imposed stay. (Doc. 18.) Thus, I hereby VACATE my December 28, 2015, Report and Recommendation, (doc. 10), and enter the following in its stead. For the reasons which follow, I RECOMMEND that the Court DISMISS Plaintiff's Complaint, without prejudice, pursuant to 28 U.S.C. § 1915(g), and DENY Plaintiff in forma pauperis status on appeal.[1]

         BACKGROUND

         Plaintiff contends that, on February 16, 2010, Defendant Brian Christopher Johnson unlawfully obtained a warrant for Plaintiff's arrest for being a felon in possession of a firearm. (Doc. 1, p. 8.) Plaintiff alleges that Johnson obtained the warrant in order to assist the Cobb County District Attorney's Office in opposing Plaintiff's motion for bail in a then-pending state prosecution. (Id.) Plaintiff maintains Defendant Johnson's actions constitute the torts of false arrest, false imprisonment, abuse of process, and malicious prosecution. Plaintiff contends Defendant Johnson failed to have Plaintiff transferred to a proper facility for his “safekeeping, care, and subsistence[.]” (Id.) He further alleges that he was assaulted by other inmates while he was housed in the Cobb County Jail as a result of Defendant Johnson's failure to have Plaintiff transferred to another facility. (Id.)

         STANDARD OF REVIEW

         Plaintiff has brought 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 or which seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).

         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.”) (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)).[2] 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 for failure to disclose prior litigation is ‚Äúprecisely the type of strike that Congress ...


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