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Clay v. Toombs County Sheriff's Office

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

August 8, 2019

KENNETH CLAY, Plaintiff,
v.
TOOMBS COUNTY SHERIFF'S OFFICE; ROBYN BANKS; and JAMES RON BIVINS, Defendants.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BENJAMIN W. CHEESBRO, UNITED STATES MAGISTRATE JUDGE

         On July 24, 2019, Chief Judge J. Randal Hall ordered that Case Number 6:18-cv-93 and Case Number 6:18-cv-133 be consolidated into Case Number 6:18-cv-92. Doc. 47. Eleven motions, six originally filed in Case Number 6:18-cv-92 and five originally filed in Case Number 6:18-cv-93, are currently before the Court. Docs. 10, 12, 13, 17, 18, 20, 30, 31, 32, 34, 35. For the following reasons, I GRANT Plaintiff's Motion to Amend, doc. 34, and Motions to Supplement, docs. 18, 20. I DENY Plaintiff's Motion to Amend, doc. 17, Plaintiff's Motion to Compel, doc. 31, and Motion for Leave of the Court to Start the Discovery Process, doc. 35. I RECOMMEND the Court DENY without prejudice Defendant Toombs County Sherriff's Office's Motions to Dismiss, docs. 13, 32, and DENY as premature Plaintiff's Motion for Default Judgment, doc. 10, Motion for Judgment on the Pleadings, doc. 12, and Motion for Summary Judgment, doc. 30.

         Finally, the Court DEFERS frivolity review and ORDERS Plaintiff to file an Amended Complaint within 14 days of the date of this Order. If Plaintiff fails to file an Amended Complaint as ordered, the Court may dismiss this case for failure to prosecute and failure to follow the Court's Order.

         BACKGROUND

         I. Overview

         This case consists of three different Complaints (all brought by Plaintiff and all alleging substantially identical facts) which the Honorable J. Randal Hall recently consolidated into one action. See Doc. 47. All three cases now consolidated into this action arise from Plaintiff's arrest for failure to register as a sex offender under O.C.G.A. § 42-1-17. Docs. 1, 22, 41. In essence, Plaintiff alleges that he did, in fact, comply with the requirements of the sex offender registry and that the Toombs County Sheriff's Office (and employees Banks and Bivins) violated his constitutional rights by making false statements in his arrest warrant. Docs. 1, 22, 41. Plaintiff's claim is now pending against three Defendants-Defendant Toombs County Sherriff's Office, Defendant Ron Bivins, and Defendant Robyn Banks.[1] Doc. 47.

         In the July 24, 2019 consolidation Order, Chief Judge Hall directed the Clerk of Court to close Case Number 6:18-cv-93 and Case Number 6:18-cv-133 and to file all pleadings in both Case Number 6:18-cv-93 and Case Number 6:18-cv-133 on the docket of Case Number 6:18-cv-92. Id. Plaintiff brought all cases now consolidated in this action while incarcerated. Plaintiff also filed motions requesting to proceed in forma pauperis in all three cases. Doc. 5; Docs. 23, 36; Doc. 43. The Court granted Plaintiff's motion in Case No. 6:18-cv-93. Doc. 36. In the consolidation Order, Judge Hall denied as moot Plaintiff's remaining motions to proceed in forma pauperis and stated that Plaintiff “shall continue to proceed in forma pauperis in this consolidated action.” Doc. 47.

         The Court finds it helpful to set out the status of the current docket in Case Number 6:18-cv-92. The first 21 filings, docs. 1-21, are all original pleadings from Case Number 6:18-cv-92. Document 22 to Document 40 are the pleadings originally submitted in Case Number 6:18-cv-93. Docs. 22-40. Finally, the pleadings initially submitted in Case Number 6:18-cv-133 are docketed as Documents 41 through 46. Docs. 41-46.

         II. Plaintiff's Three Actions

         A. Case Number 6:18-cv-92

         Plaintiff originally filed what is now Case Number 6:18-cv-92 on July 20, 2018 in the Middle District of Georgia. Doc. 1 at 1. On September 7, 2018, the Middle District determined venue was proper in this District and transferred the action accordingly. Docs. 7, 8, 9. In his original Complaint (consisting of two pages and eight pages of attachments), Plaintiff alleges that one Defendant-the Toombs County Sherriff's Office-violated the “oath of office” and infringed upon Plaintiff's Fifth, Sixth, Eighth, and Fourteenth Amendment rights. Doc. 1 at 1. In his Complaint, Plaintiff refers to Warrant Number 07-17-17-15 S and Warrant Number 07-06-17-2R. Id. Warrant Number 07-17-17-15 S and Warrant Number 07-06-17-2R seem to refer to case numbers for unindicted criminal charges pending against Plaintiff in Toombs County Superior Court. See Doc. 1-3 at 1.

         B. Case Number 6:18-cv-93

         On August 15, 2018, Plaintiff initiated Case Number 6:18-cv-93 by filing a one-page Complaint which named the Toombs County Sheriff's Office and Lieutenant Robyn Banks as Defendants. Doc. 22. In that Complaint, Plaintiff writes that he is “raising a civil rights violation” against the Toombs County Sheriff's Office and Lieutenant Robyn Banks. Id. He claims that Defendant Banks “violat[ed] her oath of office by racially profiling [him], ” committing a hate crime against him. Id. Additionally, he writes that Defendant Banks “should have known [he] followed the proper guidelines and [procedures]” when he “signed the sex offender registry” on March 22, 2016. Id.

         C. Case Number 6:18-cv-113

         Plaintiff filed his Complaint in Case Number 6:18-cv-113 on December 21, 2018 against Defendants Ron Bivins and Robyn Banks. Doc. 41. His Complaint consists of 27 pages, with 22 pages of attachments. Doc. 41. He claims that he brought his action under 18 U.S.C. §§ 241 and 242, which are the criminal equivalent of 42 U.S.C. § 1983.[2] Id. at 1. He also writes that he is “being denied or cannot enforce his equal rights under any statute or laws . . . providing . . . equal rights or equal protection” due to alleged racial discrimination by “all white[] officials” who “played a role” in Plaintiff's arrest. Id. at 5.

         Plaintiff alleged Defendant Bivins, a deputy, falsely arrested him on December 29, 2016. Doc. 41 at 3. Plaintiff claims his arrest occurred because Defendant Bivins “swore under oath” that Plaintiff failed to register as a sex offender as required under O.C.G.A. § 42-1-17. Id. Plaintiff also claims Defendant Banks, a lieutenant, knew he signed the sex offender registry form because the form contained both Plaintiff and Defendant Banks's signatures. Id. Plaintiff alleges that Defendant Banks “made false statements” in an affidavit for Plaintiff's arrest and ignored a court order which required Plaintiff live at 211 Everett Street in Vidalia, Georgia. Id.

         III. The Motions Currently Before the Court

         At the time of the consolidation, several motions were pending in Case Number 6:18-cv-92 and Case Number 6:18-cv-93 and remain pending post-consolidation.[3] Six outstanding motions remain from the original Case Number 6:18-cv-92, five filed by Plaintiff, docs. 10, 12, 17, 18, 20, and one Motion to Dismiss filed by Defendant Toombs County Sheriff's Office who specially appeared, doc. 13. The pleadings submitted by Plaintiff are: (1) a Motion for Default Judgment, doc. 10; (2) a Motion for Judgment on the Pleadings, doc. 12; (3) a Motion to Amend, doc. 17; and (4) two Motions to Supplement, docs. 18, 20.

         Similarly, five motions originally filed in Case Number 6:18-cv-93 are pending before the Court. Defendant Toombs County Sheriff's Office filed a Motion to Dismiss by Special Appearance. Doc. 32. Plaintiff filed: (1) a Motion for Summary Judgment, doc. 30; (2) a Motion to Compel, doc. 31; (3) a Motion to Amend, doc. 34; and (4) a Motion for Leave of Court to Start Discovery, doc. 35. In this Order, the Court addresses all motions that have been filed in the three actions and that remain pending.

         Importantly, Plaintiff is proceeding pro se and in forma pauperis. When evaluating this action, the Court is mindful of 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. ...


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