United States District Court, S.D. Georgia, Statesboro Division
WILLIAM G. MITCHELL, Plaintiff,
EMANUEL PROBATION, et al., Defendants.
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER, UNITED STATES MAGISTRATE JUDGE
currently incarcerated at Autry State Prison in Pelham,
Georgia, filed a cause of action pursuant to 42 U.S.C. §
1983 contesting certain events that occurred in Emanuel
County, Georgia. (Doc. 6.) Plaintiff seeks leave to proceed
in forma pauperis, (doc. 4). For the reasons set
forth below, the Court DENIES
Plaintiff's Motion to Proceed in Forma Pauperis.
Additionally, I RECOMMEND the Court
DISMISS without prejudice Plaintiff's
Complaint, DIRECT the Clerk of Court to
enter the appropriate judgment of dismissal and
CLOSE this case, and DENY
Plaintiff leave to proceed in forma pauperis on
appears to contest the events relating to his arrest and
conviction in July and August 2014. (Doc. 6, pp. 5-9.)
Plaintiff alleges that he was wrongfully convicted and a
victim of a concerted plot by Defendants Matthew and Melody
Mitchell to send him to prison and steal his belongings.
(Id. at p. 8.) Plaintiff seeks release from prison,
though he clearly states that this Complaint is “not
a habeas issue due to the level of corruption in the
system, ” and seeks “at least a million”
dollars to compensate his mental, physical, and emotional
injury. (Id. at p. 9.)
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 Fed.Appx. 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
Dismissal of Complaint Pursuant to Section 1915(g)
clearly qualifies as a “three-striker” under 28
U.S.C. § 1915(g) of the Prison Litigation Reform Act. 28
U.S.C. § 1915(g). This provision states:
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.
28 U.S.C. § 1915(g). Furthermore, 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 Court of Appeals has held to be a
“strike-worthy” form of dismissal under §
1915(g). See Rivera v. Allin, 144 F.3d 719, 731
(11th Cir. 1998) (dismissing for abuse of judicial process
“is precisely the type of strike Congress
envisioned”); Malautea v. Suzuki Motor Co.,
987 F.2d 1536, 1544 (11th Cir. 1993) (characterizing failure
to comply with court orders as “abuse of the judicial
process”). Section 1915(g) “requires frequent
filer prisoners to prepay the entire filing fee before
federal courts may consider their lawsuits and
appeals.” Rivera, 144 F.3d at 723 (citation
omitted). Therefore, the proper procedure for a district
court faced with a prisoner who seeks in forma
pauperis status but is barred by the three strikes
provision is to dismiss the complaint without prejudice.
Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir.
2002). The Eleventh Circuit ...