United States District Court, S.D. Georgia, Statesboro Division
DENNIS J. JOHNSON, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE.
currently an inmate at the Federal Correctional Institute in
Estill, South Carolina, submitted a Complaint pursuant to the
Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§§ 1346(b), 2671 et seq. (Doc. 1.)
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
that the Court DISMISS without prejudice
Plaintiff's Complaint, DIRECT the Clerk
of Court to enter the appropriate judgment of dismissal and
to CLOSE this case, and
DENY Plaintiff leave to proceed in forma
pauperis on appeal.
Complaint, Plaintiff asserts he became the target of gang
violence after he made a formal disciplinary report against
two inmates, each a member of a different gang, for fighting.
(Doc. 1, p. 4.) Plaintiff alleges the violence occurred
because agents of Defendant failed to conceal his identity in
the report. (Id. at p. 5.) As a result of the gang
attacks, Plaintiff suffered injury to his mouth, including a
broken jaw and teeth. (Id. at p. 6.) Plaintiff seeks
$50, 000 in compensatory damages for Defendant's
negligent conduct that led to Plaintiff's identity being
known by those accused in his disciplinary report.
(Id. at p. 8.)
seeks to bring 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. §
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.
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 . . .
.”) (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 Abuse of Judicial Process
Complaint form directly asks Plaintiff whether he has
“begun other lawsuits in state or federal court dealing
with the same facts involved in this action or otherwise
relating to your imprisonment.” (Doc. 1, p. 1
(emphasis added).) Plaintiff marked “No” in the
accompanying blank. (Id.) However, a search of
Plaintiff's litigation history reveals that he has filed
at least four other causes of action prior to executing his
present Complaint on March 10, 2018:
1. Compl., Johnson v. Board of Directors, Federal Prison
Industries, Inc., 2:17-cv-145 (S.D. Ga. Dec. 12, ...