United States District Court, N.D. Georgia, Atlanta Division
FINAL REPORT AND RECOMMENDATION AND ORDER
CATHERINE M. SALINAS UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Plaintiff Felicia Lenore
Watson's (“Plaintiff's) affidavit of indigency,
request to proceed in forma pauperis
(“IFP”), and proposed petition for a declaratory
judgment with supplemental jurisdiction over all state court
eviction claims. (Docs. 1, 1-1).
consideration of Plaintiff's affidavit of indigency, I
find that Plaintiff meets the financial requirements for IFP
status and GRANT her request to proceed IFP
pursuant to 28 U.S.C. § 1915(a). However, the Court must
also determine whether Plaintiff's proposed complaint is
frivolous and, if so, must dismiss it without prejudice.
See 28 U.S.C. § 1915(e)(2); Neitzke v.
Williams, 490 U.S. 319, 324 (1989). A complaint is
frivolous if “it lacks an arguable basis either in law
or in fact, ” Neitzke, 490 U.S. at 327, or
“if the ‘plaintiff's realistic chances of
ultimate success are slight.'” Clark v. State
of Ga. Pardons and Paroles Bd., 915 F.2d 636, 639 (11th
Cir. 1990) (quoting Moreland v. Wharton, 899 F.2d
1168, 1170 (11th Cir. 1990)).
complaint, Plaintiff alleges that a state court eviction
action apparently taking place in the Magistrate Court of
Gwinnett County is in violation of an automatic bankruptcy
stay, pursuant to 11 U.S.C. § 362, associated with
Plaintiff's bankruptcy action filed in the Bankruptcy
Court for the Northern District of Georgia, No. 18-63905-LRC.
(Doc. 1-1 at 2). Plaintiff seeks a declaratory judgment
regarding her alleged possessory rights to the
“property, ” which she does not identify by
address or description.
separate action that Plaintiff filed in this Court, No.
1:18-cv-05022-ODE, on October 31, 2018, Plaintiff sought to
remove the Gwinnett County dispossessory proceeding for past
due rent (No. 18M26274) to this Court on the basis of federal
question jurisdiction. A Final Report and Recommendation has
been issued in that removal case, recommending that the case
be remanded to state court pursuant to 28 U.S.C. §
1447(c) for lack of subject matter jurisdiction. (Doc. 3, No.
review of the docket in Plaintiff's bankruptcy action
indicates that on August 30, 2018, Plaintiff's landlord,
Long Sheng, for the premises located at 1550 Racquet Club
Drive, in Lawrenceville, Georgia, 30043 (the
“Property”) moved the Bankruptcy Court for relief
from the automatic stay under 11 U.S.C. § 362. (Doc. 29,
Order, No. 18-63905-LRC). Sheng represented to the Court that
Plaintiff had failed to cure the pre-petition arrearage and
failed to pay the post-petition rent when due.
(Id.). A hearing was held on October 11, 2018, at
which the arguments of Plaintiff and Sheng's counsel were
heard. On October 15, 2018, after due consideration, the
Bankruptcy Court issued an order granting Sheng's motion
and modifying the automatic stay to the extent necessary for
Sheng to commence and/or complete dispossessory proceedings
against Plaintiff pursuant to applicable state law.
(Id.). The Bankruptcy Court docket does not reflect
that any objections to the Order were filed.
filed pro se are to be liberally construed and
“held to less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 551
U.S. 89, 94 (2007) (citations and internal quotation marks
omitted). Nevertheless, a pro se plaintiff must
still comply with the threshold requirements of the Federal
Rules of Civil Procedure. “Even though a pro
se complaint should be construed liberally, a pro
se complaint still must state a claim upon which the
Court can grant relief.” Grigsby v. Thomas,
506 F.Supp.2d 26, 28 (D.D.C. 2007).
reviewed the complaint filed in the current action and
Plaintiff's request for a declaratory judgment regarding
her alleged possessory rights, I find that Plaintiff's
allegations are moot and/or without legal basis in light of
the Bankruptcy Court's most recent Order and this
Court's finding of no subject matter jurisdiction over
Plaintiff's attempted removal of the dispossessory
proceeding filed by Long Sheng in the Magistrate Court of
extent that Plaintiff's complaint seeks to enjoin already
docketed state court eviction proceedings, this court is
prohibited from enjoining such proceedings pursuant to the
Anti-Injunction Act, 28 U.S.C. § 2283. That Act states
that “[a] court of the United States may not grant an
injunction to stay proceedings in a State court except as
expressly authorized by Act of Congress, or where necessary
in aid of its jurisdiction, or to protect or effectuate its
judgments.” 28 U.S.C. § 2283. See Phillips v.
Chas. Schreiner Bank, 894 F.2d 127, 131-32 (5th Cir.
1990) (finding that Anti-Injunction Act prohibited federal
court from issuing a preliminary injunction that interfered
with state court foreclosure proceedings pending at the time
of the injunction); Ungar v. Mandell, 471 F.2d 1163,
1165 (2d Cir. 1972) (finding that Anti-Injunction Act
prohibited a preliminary injunction which would have
prevented the sale of property previously the subject of a
state foreclosure proceeding). From the allegations in
Plaintiff's complaint, none of the three exceptions
stated in the Anti-Injunction Act appear to be applicable
here. Atl. Coast Line R.R. Co. v. Bhd. of Locomotive
Eng'rs, 398 U.S. 281, 287 (1976) (stating that the
Anti-Injunction Act “cannot be evaded by addressing the
order to the parties or prohibiting utilization of the
results of a completed state proceeding.”).
relief is appropriate when it is necessary to “protect
the plaintiff from uncertainty and insecurity with regard to
the propriety of some future act or conduct.”
Henderson v. Alverson, 217 Ga. 541, 123 S.E.2d 721
(1962) (italics added); see also Sullivan v. Div. of
Elections, 718 F.2d 363, 365 (11th Cir. 1983)(citation
omitted) (stating that a “district court can grant
declaratory relief only if there is ‘a substantial
controversy of sufficient immediacy and reality between
parties having adverse legal interests.'”). Here,
Plaintiff has not alleged any future act or conduct about
which there is uncertainty. The Bankruptcy Court has issued
an order modifying the automatic bankruptcy stay, and
Plaintiff's landlord has filed a dispossessory action in
state court in accordance with that Order. Plaintiff has
failed to show that she is entitled to declaratory relief.
reasons stated, I RECOMMEND that this action
be DISMISSED without
prejudice as frivolous. Plaintiffs request to
proceed IFP is GRANTED solely for purposes
IS SO ORDERED ...