Opinion
5:21-cv-00138-MTT-CHW
06-01-2021
RICO LAMAR BALLARD, Plaintiff, v. WARDEN JOSE MORALES, et al., Defendants.
ORDER AND RECOMMENDATION OF DISMISSAL
Charles H. Weigle United States Magistrate Judge
Plaintiff Rico Lamar Ballard, a prisoner in Hays State Prison in Trion, Georgia, has filed a civil rights complaint pursuant to 42 U.S.C. § 1983. Compl., ECF No. 1. Plaintiff has also moved for leave to proceed in forma pauperis and for appointment of counsel. Mot. for Leave to Proceed In Forma Pauperis, ECF No. 2; Mot. to Appoint Counsel, ECF No. 3. As discussed below, Plaintiff's motion to proceed in forma pauperis is GRANTED, and his motion to appoint counsel is DENIED. Thus, Plaintiff's complaint is ripe for preliminary review. On preliminary review of Plaintiff's complaint, it is now RECOMMENDED that Plaintiff's complaint be DISMISSED WITHOUT PREJUDICE for the reasons discussed herein.
Before moving on to the analysis of Plaintiff's motions and complaint, however, it is noted that Plaintiff simultaneously filed this action along with four other civil rights complaints, which have been separately docketed as Ballard v. Holland, 5:21-cv-00139-MTT-CHW; Ballard v. Matthews, Case No. 5:21-cv-00140-MTT-CHW; Ballard v. Gaines, Case No. 5:21-cv-00141-MTT-CHW; and Ballard v. Morales, Docket No. 5:21- cv-00142-MTT-CHW. A preliminary review of these complaints raises questions with regard to Plaintiff's truthfulness. For example, Plaintiff asserts in the complaints that he won two previous lawsuits, Ballard v. Fulton County Jail, Case No. 1:04-cv-03465-RWS (N.D.Ga.), and Ballard v. Jerriel, Case No. 6:09-cv-00002-BAE-JEG (S.D. Ga.).Contrary to this claim, a review of the records in these cases reveals that, in both cases, some of Plaintiff's claims were dismissed on preliminary review and the remaining claims were disposed of when summary judgment was granted to the defendants.
Plaintiff identifies these cases by different defendants' names, but these are the case names coinciding with the docket numbers provided by Plaintiff.
Additionally, Plaintiff repeatedly asserts that he is the Timothy Gumm in Gumm v. Jacobs, Case No. 5:15-cv-00041-MTT-CHW (M.D. Ga.). This assertion also appears to be contradicted by the record in that case, as the case was filed under the name and prisoner number of Timothy Denver Gumm, another inmate within the Georgia Department of Corrections. On the face of the docket, there is no indication that Plaintiff was involved in the Gumm v. Jacobs case, although it is possible that he may have been a class member in that lawsuit.
Plaintiff is reminded that it is of the utmost importance that he be truthful with the Court at all times. See Fed. R. Civ. P. 11(b) (regarding representations made to the Court). If Plaintiff is found to be lying to or intentionally misleading the Court, he may be subject to sanctions. See Fed. R. Civ. P. 11(c) (permitting the Court to impose sanctions for violations of Rule 11(b)).
MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
Any court of the United States may authorize the commencement of a civil action, without prepayment of the required filing fee (in forma pauperis), if the plaintiff shows that he is indigent and financially unable to pay the court's filing fee. See 28 U.S.C. § 1915(a). A prisoner wishing to proceed under § 1915 must provide the district court with both (1) an affidavit in support of his claim of indigence, and (2) a certified copy of his prison “trust fund account statement (or institutional equivalent) for the 6-month period immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(b).
Pursuant to this provision, Plaintiff has moved for leave to proceed without prepayment of the $350.00 filing fee, and his submissions show that he is currently unable to prepay any portion of the filing fee. Plaintiff's motion to proceed in forma pauperis is therefore GRANTED. Plaintiff is, however, still obligated to eventually pay the full balance of the filing fee, in installments, as set forth in § 1915(b) and explained below. The district court's filing fee is not refundable, regardless of the outcome of the case, and must therefore be paid in full even if Plaintiff's complaint is dismissed prior to service.
For this reason, the CLERK is DIRECTED to forward a copy of this Order to the business manager of the facility in which Plaintiff is incarcerated so that withdrawals from his account may commence as payment towards the filing fee, as explained below.
I. Directions to Plaintiff's Custodian
Because Plaintiff has now been granted leave to proceed in forma pauperis in the above-captioned case, it is hereby ORDERED that the warden of the institution wherein Plaintiff is incarcerated, or the Sheriff of any county wherein he is held in custody, and any successor custodians, each month cause to be remitted to the CLERK of this Court twenty percent (20%) of the preceding month's income credited to Plaintiff's trust account at said institution until the $350.00 filing fee has been paid in full. The funds shall be collected and withheld by the prison account custodian who shall, on a monthly basis, forward the amount collected as payment towards the filing fee, provided the amount in the prisoner's account exceeds $10.00. The custodian's collection of payments shall continue until the entire fee has been collected, notwithstanding the dismissal of Plaintiff's lawsuit or the granting of judgment against him prior to the collection of the full filing fee.
II. Plaintiff's Obligations Upon Release
An individual's release from prison does not excuse his prior noncompliance with the provisions of the PLRA. Thus, in the event Plaintiff is hereafter released from the custody of the State of Georgia or any county thereof, he shall remain obligated to pay those installments justified by the income to his prisoner trust account while he was still incarcerated. The Court hereby authorizes collection from Plaintiff of any balance due on these payments by any means permitted by law in the event Plaintiff is released from custody and fails to remit such payments. Plaintiff's Complaint may be dismissed if he is able to make payments but fails to do so or if he otherwise fails to comply with the provisions of the PLRA.
MOTION TO APPOINT COUNSEL
Plaintiff has also filed a motion for the appointment of counsel. In the motion, Plaintiff asserts that his incarceration will limit his ability to litigate his case, counsel would be better able to present evidence, and Plaintiff is unable to afford a lawyer. Mot. to Appoint Counsel, ECF No. 3. Insofar as it is recommended below that Plaintiff's complaint be dismissed, his motion for the appointment of counsel may be denied as moot. Even if the complaint is not dismissed, however, Plaintiff's motion would be denied at this time.
“Appointment of counsel in a civil case is not a constitutional right.” Wahl v McIver, 773 F.2d 1169, 1174 (11th Cir. 1986). To the contrary, appointment of counsel is a privilege that is justified only by exceptional circumstances. Id. In deciding whether legal counsel should be provided, the Court considers, among other factors, the merits of Plaintiff's claim and the complexity of the issues presented. Holt v. Ford, 862 F.2d 850, 853 (11th Cir. 1989).
The federal in forma pauperis statute authorizes courts to “request an attorney to represent any person unable to afford counsel, ” 28 U.S.C. § 1915(e)(1). The statute does not, however, provide any funding to pay attorneys for their representation or authorize courts to compel attorneys to represent an indigent party in a civil case. See Mallard v. U.S. Dist. Ct. for S. Dist. of Iowa, 490 U.S. 296 (1989).
In accordance with Holt, and upon a review of the record in this case, the Court notes that Plaintiff has set forth the essential factual allegations underlying his claims, and that the applicable legal doctrines are readily apparent. As such, Plaintiff's motion for appointment of counsel is DENIED. Should it later become apparent that legal assistance is required in order to avoid prejudice to Plaintiff's rights, the Court, on its own motion , will consider assisting him in securing legal counsel at that time. Consequently, there is no need for Plaintiff to file additional requests for counsel.
PRELIMINARY REVIEW OF PLAINTIFF'S COMPLAINT
I. Standard of Review
Because the Court has granted Plaintiff leave to proceed in forma pauperis, his complaint is subject to a preliminary review. See 28 U.S.C. § 1915A(a) (requiring the screening of prisoner cases) & 28 U.S.C. § 1915(e) (regarding in forma pauperis proceedings). When performing this review, the court must accept all factual allegations in the complaint as true. Brown v. Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004). Pro se pleadings are also “held to a less stringent standard than pleadings drafted by attorneys, ” and thus, the Court “liberally construe[s]” pro se claims. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). Still, the Court must dismiss a prisoner complaint if it “(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. §1915A(b).
A claim is frivolous if it “lacks an arguable basis either in law or in fact.” Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008) (internal quotation marks omitted). The Court may dismiss claims that are based on “indisputably meritless legal” theories and “claims whose factual contentions are clearly baseless.” Id. (internal quotation marks omitted). A complaint fails to state a claim if it does not include “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)). The factual allegations in a complaint “must be enough to raise a right to relief above the speculative level” and cannot “merely create[] a suspicion [of] a legally cognizable right of action.” Twombly, 550 U.S. at 555 (first alteration in original). In other words, the complaint must allege enough facts “to raise a reasonable expectation that discovery will reveal evidence” supporting a claim. Id. at 556. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
To state a claim for relief under §1983, a plaintiff must allege that (1) an act or omission deprived him of a right, privilege, or immunity secured by the Constitution or a statute of the United States; and (2) the act or omission was committed by a person acting under color of state law. Hale v. Tallapoosa Cty, 50 F.3d 1579, 1582 (11th Cir. 1995). If a litigant cannot satisfy these requirements or fails to provide factual allegations in support of his claim or claims, the complaint is subject to dismissal. See Chappell v. Rich, 340 F.3d 1279, 1282-84 (11th Cir. 2003).
II. Factual Allegations
As an initial matter, Plaintiff's factual allegations in this complaint are not set forth in detail in this order because Plaintiff's complaint does not comply with the requirement of Fed.R.Civ.P. 8(a)(2), which requires a plaintiff to set forth a “short and plain statement of the claim showing the pleader is entitled to relief.” See Compl. 7-68, ECF No. 1. Instead, Plaintiff's statement of the claim is a 61-page recitation of factual allegations against some twenty-four defendants, generally asserting that he told each of them that he had passed his maximum release date, but none of them helped him secure his release. See Id. Thus, he contends that they were all, to some degree, responsible for falsely imprisoning him beyond his maximum release date. See Id. Plaintiff's complaint rambles, repeats itself numerous times, and attempts to assert claims against a number of defendants who appear to have had no authority over Plaintiff's confinement or his release. See id.
III. Plaintiff's Claims
Regardless, even if the complaint complied with Rule 8, Plaintiff's claims are not properly raised in this action. In particular, although he requests other relief, the primary relief that Plaintiff seeks is his immediate release from prison. Id. at 69. It is well-established, however, that “when a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus.” Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). Thus, to the extent that he is seeking release, Plaintiff must proceed through a petition for a writ of habeas corpus and not through a 42 U.S.C. § 1983 petition.
Moreover, insofar as Plaintiff seeks other relief, including money damages, his success on his claims that he is being held illegally would necessarily imply the invalidity of his current sentence. A prisoner cannot bring a § 1983 action for damages that would invalidate a sentence or conviction unless the sentence or conviction in question has previously been invalidated. Heck v. Humphrey, 512 U.S. 477, 487 (1994). Here, Plaintiff repeatedly says that he has provided various prison officials with documentation showing that he has passed his maximum release date. Alternatively, Plaintiff also contends that his sentence has been “discharged, vacated, commuted, and declared null and void.”
All of Plaintiff's allegations that he has passed his maximum release date are conclusory and unsupported by any specific factual support, such as any allegations showing how his maximum release date was calculated. In particular, Plaintiff seems to acknowledge that, at least at one point, he had been sentenced to life in prison, but Plaintiff asserts that his life sentence has been “discharged, vacated, commuted, and declared null and void.” Plaintiff does not, however, provide any explanation as to the circumstances of any change to his life sentence, such as by providing information as to the proceeding that purportedly led to Plaintiff's sentence being discharged, vacated, commuted, or declared null and void or any reasoning on which Plaintiff's life sentence may have been overturned. Plaintiff's general and conclusory allegations are not sufficient to state a claim upon which relief may be granted.
Moreover, publicly available records from Plaintiff's criminal case, State v. Ballard, Case No. Z75422, show that Plaintiff received a life sentence in that case, and nothing in the records of that case shows that Plaintiff's life sentence has been vacated or otherwise overturned. To the contrary, those records demonstrate that Plaintiff has made several post-conviction attempts to have his life sentence vacated, but those attempts have been dismissed or denied. Additionally, a search of the Georgia State Board of Pardons and Paroles, Inmate Tentative Parole Month lookup indicates that Plaintiff is serving a life sentence. Thus, insofar as Plaintiff's claims would imply the invalidity of that sentence, they are barred by Heck.
Fulton County Magistrate, State, and Superior Court Record Search, https://publicrecordsaccess.fultoncountyga.gov/Portal/Home/WorkspaceMode?p=0 (last accessed May 18, 2021).
Under the Federal Rules of Evidence, a court may “judicially notice a fact that is not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot be reasonably be questioned.” Fed.R.Evid. 201(b)(2). “State court records of an inmate's postconviction proceedings generally satisfy this standard.” Paez v. Sec'y, Fla. Dep't of Corrs., 947 F.3d 649, 651-52 (11th Cir. 2020).
Inmate Tentative Parole Month (TPM) Look-up, http://www.pap.state.ga.us/InmateTPM/ (search by Personal Data, first name “Rico, ” last name “Ballard”) (last accessed May 18, 2021).
Finally, Plaintiff also makes allegations that the defendants are involved in an elaborate plot to steal his money, property, and identity. These allegations are completely conclusory with no factual allegations to support them, such as what money or property was allegedly stolen from Plaintiff, how any of the defendants are specifically involved with stealing from Plaintiff, or how Plaintiff knows that any of the defendants has stolen anything from him.
Even if Plaintiff had supported these allegations, the Due Process Clause of the Fourteenth Amendment is not offended when a government official deprives an individual of his personal property if the state makes available a meaningful post-deprivation remedy. Hudson v. Palmer, 468 U.S. 517, 533 (1984). The State of Georgia provides Plaintiff an adequate post-deprivation remedy for the loss of his money or property through a state court action. See O.C.G.A. §§ 51-10-1 through 51-10-6; see also Lindsey v. Storey, 936 F.2d 554, 561 (11th Cir. 1991) (finding no due process violation for the retention of the plaintiffs' cash by the police because Georgia “has provided an adequate post deprivation remedy” in O.C.G.A. § 51-10-1). Thus, his allegations that officials have been stealing from him do not show any constitutional violation.
IV. Conclusion
Accordingly, insofar as Plaintiff seeks release from incarceration, this relief is not available in a 42 U.S.C. § 1983 action, and Plaintiff must pursue this remedy through a petition for a writ of habeas corpus. Moreover, to the extent that he seeks monetary damages based on his unlawful incarceration, Plaintiff's claims would imply the invalidity of his current sentence and are therefore barred by Heck. Finally, Plaintiff's claims that the defendants are stealing his money, property, and identity are completely conclusory claims that are unsupported by any specific factual allegations, and they do not show a constitutional violation. Thus, it is now RECOMMENDED that this complaint be DISMISSED WITHOUT PREJUDICE in its entirety for the reasons discussed herein.
OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1), Plaintiff may serve and file written objections to this recommendation with the United States District Judge to whom this case is assigned within FOURTEEN (14) DAYS of his being served with a copy of this Order. Plaintiff may seek an extension of time in which to file written objections or amendments, provided a request for an extension is filed prior to the deadline for filing written objections. Failure to object in accordance with the provisions of § 636(b)(1) waives the right to challenge on appeal the district judge's order based on factual and legal conclusions to which no objection was timely made. See 11th Cir. R. 3-1.
SO ORDERED and RECOMMENDED,