United States District Court, S.D. Georgia, Waycross Division
ORDER and MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE.
who is incarcerated at Ware State Prison in Waycross,
Georgia, filed this cause of action pursuant to 42 U.S.C.
§ 1983, contesting certain conditions of his
confinement. (Doc. 1.) Plaintiff also filed a Motion for
Leave to Proceed in Forma Pauperis. (Doc. 2.) For
the reasons that follow, the Court DENIES
Plaintiff's Motion. Furthermore, I
RECOMMEND 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 appeal in forma
Plaintiff contends Defendants failed to protect him from
“closed security inmates.” (Doc. 1, p. 5.)
Plaintiff states that two unnamed inmates stabbed him six
times due to a breach in security where Defendants failed to
properly cordon off these inmates. Plaintiff alleges
Defendants left a security loop unlocked and unsupervised,
which allowed these inmates to commit the subject attack.
(Id.) Plaintiff states he filed a grievance
regarding these allegations but did not appeal. (Id.
at pp. 3-4.) As relief, Plaintiff seeks $1.5 million.
(Id. at p. 6.)
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 5930633, at *1 (N.D.Ga. Oct. 18, 2012)
(explaining that a magistrate judge's R&R constituted
adequate notice and petitioner's opportunity to file
objections provided a reasonable opportunity to respond).
Additionally, this R&R provides Plaintiff the opportunity
to amend his Complaint to correct the deficiencies noted
herein. See Fed.R.Civ.P. 15. Should Plaintiff seek
to amend his Complaint, he must file the amendment within
fourteen (14) days from the date of this
R&R or which seeks monetary relief from a defendant who
is immune from such relief. 28 U.S.C. § 1915A(b).
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 . . .
.”) (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 Plaintiff's Failure to Exhaust Available
Administrative Remedies Before Filing
Exhaustion at Frivolity Review Stage
to exhaust administrative remedies is an affirmative defense,
and inmates are not required to specially plead or
demonstrate exhaustion in their complaint. Jones v.
Bock, 549 U.S. 199, 216 (2007). However, the normal
pleading rules still apply, and when an affirmative defense
appears on the face of a complaint making it clear that a
prisoner cannot state a claim for relief, dismissal is
warranted under the screening process set out in 28 U.S.C.
§ 1915A. Id. at 214-15. “Even though a
failure-to-exhaust defense is non-jurisdictional, it is
like” a jurisdictional defense because such a
determination “ordinarily does not deal with the
merits” of a particular cause of action. Bryant v.
Rich, 530 F.3d 1368, 1374 (11th Cir. 2008) (citation and
internal punctuation omitted). Thus, when a prisoner admits
in his complaint that he has not exhausted the grievance
process, the Court should dismiss the lawsuit during the
frivolity screening. See Okpala v. Drew, 248
Fed.Appx. 72 (11th Cir. 2007) (per curiam); Cole v.
Ellis, No. 5:10-CV-00316-RS-GRJ, 2010 WL 5564632, at *3
(N.D. Fla. Dec. 28, 2010); Rashid v. Liberty Cty.
Jail, CV410-092, 2010 WL 3239241, at *1 n.1 (S.D. Ga.
May 3, 2010) (“Nothing in Jones . . . forbids
the Court from dismissing a complaint pursuant to §
1997e(a) if it is clear from the face.”)