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Pender v. Burrows

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

June 15, 2017

CORNELIUS PENDER, Plaintiff,
v.
B. BURROWS, Detention Officer; CAPTAIN DANNY CHRISTMAS; MEDICAL STAFF, WARE COUNTY JAIL; and SHERIFF OF WARE COUNTY, Defendants.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, an inmate at Smith State Prison in Glennville, Georgia, brought this suit contesting certain conditions of his confinement while detained at Ware County Jail in Waycross, Georgia, pursuant to 42 U.S.C. § 1983. (Doc. 1.) For the reasons which follow, the Court DENIES Plaintiff's Motion for Leave to Proceed in Forma Pauperis. (Doc. 2.) Additionally, I RECOMMEND that the Court DISMISS without prejudice Plaintiff's Complaint, (doc. 1), and DIRECT the Clerk of Court to CLOSE this case. I also RECOMMEND that the Court DENY Plaintiff in forma pauperis status on appeal.

         BACKGROUND

         Plaintiff filed a Complaint on May 30, 2017, alleging that Defendants used excessive force against him and then failed to provide him medical care for his injuries. (Doc. 1, p. 5.) Plaintiff requests as relief $500, 000 in damages, termination of Defendants' employment at Ware County Jail, and a verbal apology from Defendant Burrows. (Id. at p. 6.)

         STANDARD OF REVIEW

         Plaintiff seeks to bring this action in forma pauperis and pursuant to 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 for Abuse of Judicial Process

         As noted above, Plaintiff has moved to proceed in forma pauperis in this action. The form Complaint filed by Plaintiff directly asked whether Plaintiff had filed “any lawsuits in federal court which deal with facts other than those involved in this action” and directed Plaintiff to describe any additional lawsuits. (Doc. 1, p. 2.) In response, Plaintiff indicated that he had filed no other lawsuits in federal court and left the eight follow-up questions blank. (Id. at pp. 2- 3.) The form Complaint also asked Plaintiff whether “any lawsuit . . . in which [he was] allowed to proceed in forma pauperis” was “dismissed on the ground that it was frivolous, malicious, or failed to state a claim.” (Id. at p. 3.) Plaintiff again responded that he had filed no such lawsuits. (Id.) Despite Plaintiff's assertions to the contrary, the case management system shows that Plaintiff has brought at least one additional lawsuit in federal court while he was incarcerated or detained prior to filing this action: Compl., Pender v. Ware County Jail, et al., 5:06-cv-86 (S.D. Ga. Oct. 11, 2006), ECF No. 1. Moreover, the Court dismissed Plaintiff's claims against Ware County Jail in Case Number 5:06-cv-86 for failure to state a claim. Order, Pender v. Ware County Jail, et al., 5:06-cv-86 (S.D. Ga. Apr. 18, 2007), ECF No. 21.

         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 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 ...


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