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Johnson v. United States

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

July 16, 2018

DENNIS J. JOHNSON, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, 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.[1]

         PLAINTIFF'S ALLEGATIONS

         In his 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.)

         STANDARD OF REVIEW

         Plaintiff 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. § 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 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)).

         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

         The 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, ...

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