United States District Court, S.D. Georgia, Waycross Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE
who is currently housed at Coffee Correctional Facility in
Nicholls, Georgia, filed a Complaint, as amended, pursuant to
42 U.S.C. § 1983. (Docs. 1, 5.) Plaintiff also filed a
Motion for Leave to Proceed in Forma Pauperis. (Doc.
2.) For the reasons set forth below, the Court
DENIES Plaintiff's Motion. For these
same reasons, I RECOMMEND the Court
DISMISS Plaintiff's Complaint based on
his failure to state a claim, DIRECT the
Clerk of Court to CLOSE this case and enter
the appropriate judgment of dismissal, and
DENY Plaintiff in forma pauperis
status on appeal.
Amended Complaint, Plaintiff contends his Seminole County,
Georgia, parole was revoked, even though that portion of his
sentence expired. Plaintiff asserts he wrote grievances about
receiving credit against his sentence while he was housed at
the Georgia Diagnostic & Classification Prison, as well
as while he has been housed at Coffee Correctional. (Doc. 5.)
He seeks monetary damages and his immediate release from
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, 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, 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
___”) (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
Whether Venue is Proper in This Court
district court may raise the issue of defective venue sua
sponte. Collins v. Hagel, No. 1:13-CV-2051-WSD,
2015 WL 5691076, at *1 (N.D.Ga. Sept. 28, 2015) (citing
Kapordelis v. Danzig, 387 F. App'x 905, 906-07
(11th Cir. 2010) (affirming sua sponte transfer,
pursuant to 28 U.S.C. § 1406(a), of pro se
prisoner's civil rights action from New York to Georgia);
Berry v. Salter, 179 F.Supp.2d 1345, 1350 (M.D. Ala.
2001); cf. Lipofsky v. New York State Workers Comp.
Bd., 861 F.2d 1257, 1259 (11th Cir. 1988); and Nalls
v. Coleman Low Fed. Inst., 440 F. App'x 704, 706
(11th Cir. 2011)). When venue is improper, a court
“shall dismiss, or if it be in the interest of justice,
transfer such case to any district . . . in which it could
have been brought.” 28 U.S.C. § 1406(a).
“The court may transfer the case if (1) the proposed
transferee court is one in which the action ‘could have
been brought' and (2) transfer would be ‘in the
interest of justice.'” Leach v. Peacock,
Civil Action No. 2:09cv738-MHT, 2011 WL 1130596, at *4 (M.D.
Ala. Mar. 25, 2011) (citing 28 U.S.C. § 1406(a)). Trial
courts generally have broad discretion in determining whether
to transfer or dismiss a case. Id. (citing
England v. ITT Thompson Indus., Inc., 856 F.2d 1518,
1520 (11th Cir. 1988)).
Court is not the proper venue to hear Plaintiff's claims
against the named Defendants, except as to Defendant Hall. 28
U.S.C. § 1391(b) sets forth the applicable venue
A civil action may be brought in (1) a judicial district in
which any defendant resides, if all defendants are residents
of the State in which the district is located; (2) a judicial
district in which a substantial part of the events or
omissions giving rise to the claim occurred, or a substantial
part of property that is the subject of the action is
situated; or (3) if there is no district in which an action
may otherwise be brought as provided in this section, any