United States District Court, S.D. Georgia, Statesboro Division
ORDER and MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE
who is incarcerated at Rogers State Prison in Reidsville,
Georgia, filed a Complaint pursuant to 42 U.S.C. § 1983.
(Doc. 1.) Plaintiff also filed a Motion to Proceed in
Forma Pauperis. (Doc. 2.) This Court deferred ruling on
Plaintiff's Motion to Proceed in Forma Pauperis
by Order dated August 2, 2017. (Doc. 4.)
reasons which follow, the Court DENIES
Plaintiff's Motion for Leave to Proceed in Forma
Pauperis, (doc. 2), and DISMISSES as
moot his Motion for Appointment of Counsel, (doc.
6). For these same reasons, I RECOMMEND the
Court DISMISS without prejudice
Plaintiff's Complaint and DIRECT the
Clerk of Court to CLOSE this case based on
Plaintiff's failure to follow this Court's Order.
Additionally, I RECOMMEND the Court
DENY Plaintiff leave to appeal in forma
brings his Complaint pursuant to 42 U.S.C. § 1983. In
his Complaint, Plaintiff asserted Defendant Dickson accused
him of being in a fight. Plaintiff stated he was taken to
medical and photographed, which revealed he had not been in a
fight, yet he was taken to the Special Housing Unit
(“SHU”) while this alleged incident was
investigated under Defendant Dickson's authority. (Doc.
1, p. 2.) Plaintiff contended he was not issued a
disciplinary report and received no hearing, and he was
placed in the SHU without due process.
also contended there are no panic buttons or sprinklers in
the cells in the SHU. Plaintiff stated the food is served
cold, is “frequently infested, ” and is served
through the same slot as dirty brooms and mops are when they
are passed through the cells. (Id.) Plaintiff
maintained the inmates in the SHU are not given any cleaning
supplies for the toilets, the rooms are infested with
roaches, mice, spiders, mosquitoes, and gnats, and black mold
is growing inside the vents. Plaintiff averred he has no
access to a law library, is frequently denied outdoor
recreation, and was denied toothpaste and deodorant for
weeks. Plaintiff's Amended Complaint largely echoes his
original Complaint. (Doc. 5.)
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).
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)).
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)).
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
Dismissal for Failure to Follow this Court's
August 2, 2017, Order, the Court deferred the requisite
frivolity review of Plaintiff's Complaint. The Court
directed Plaintiff to amend his Complaint using the
Court's preferred complaint form. (Doc. 4, p. 4.) The
Court advised Plaintiff his claims were not related to each
other and that he must set forth allegations in his Amended
Complaint indicating that his constitutional rights had been
violated and by whom those rights had been violated.
(Id.) In this regard, the Court provided Plaintiff
with specific instructions as to how he should amend his
Complaint. (Id. at p. 5.) Plaintiff was cautioned
that his failure to file an ...