Opinion
5:21-CV-00281-MTT-CHW
08-17-2021
DEWEY ADAM GARNER, Plaintiff, v. CHERI BAKER, et al., Defendants.
RECOMMENDATION OF DISMISSAL
Charles H. Weigle, United States Magistrate Judge
Presently pending before the Court is a Complaint filed by pro se Plaintiff Dewey Adam Garner, an inmate at the Spalding County Jail in Griffin, Georgia. ECF No. 1. Plaintiff has also filed an incomplete motion to proceed in forma pauperis. ECF No. 2. Plaintiff is granted leave to proceed in forma pauperis for purposes of this recommendation only, and it is RECOMMENDED that this action be DISMISSED without prejudice.
PRELIMINARY REVIEW OF PLAINTIFF'S COMPLAINT
I. Standard of Review
In accordance with the Prison Litigation Reform Act (“PLRA”), the district courts are obligated to conduct a preliminary screening of every complaint filed by a prisoner who seeks redress from a government entity, official, or employee. See 28 U.S.C. § 1915A(a). Screening is also required under 28 U.S.C. § 1915(e) when the plaintiff is proceeding IFP. Both statutes apply in this case, and the standard of review is the same. When conducting preliminary screening, the Court must accept all factual allegations in the complaint as true. Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) abrogated in part on other grounds by Wilkins v. Gaddy, 559 U.S. 34 (2010); Hughes v. Lott, 350 F.3d 1157, 1159-60 (11th Cir. 2003). Pro se pleadings, like the one in this case, are “held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed.” Id. (internal quotation marks omitted). 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 Cnty., 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. Plaintiff's Allegations
Plaintiff's claims are disjointed and difficult to comprehend. Plaintiff alleges that Defendant Baker, who had temporary guardianship over his child, kidnapped the same child in Colorado. ECF No. 1 at 4. The Plaintiff contacted several law enforcement agencies in Arizona, but the child “was never put the missing or exploited child database.” Id. Thereafter, some agency declared Plaintiff to be “a pedophile and a pedophiliac in accusation but not by rule of evidence to be a public warning or notice issuance by a magistrate or any other judge in good standing with said state.” Id. at 1-2. Somehow, thereafter, Plaintiff ended up in two different hospitals and subsequently “Piney Woods mental health inpatient care …where [he] was incarcerated by GA 10-13 O.C.G.A. code for risk of suicide.” Id. at 2. Plaintiff accuses “Arizona” of intimidation and bribery in relation to his stay at Piney Woods. Id. Then due to “issues” and “harassment”, Plaintiff found himself homeless and starving in North Carolina and in Griffin, Georgia, he “started severe drug usage and intentionally broke laws to seek safety and video surveillance and official record of persecute and abuser of Governmental Powers”. Id. at 3.
III. Analysis of Plaintiff's Claims
As stated previously, it is difficult to discern Plaintiff's actual claims under 42 U.S.C.§ 1983. Whatever they may be, venue is not proper in this Court. Venue in federal court is generally proper in a judicial district “in which any defendant resides” and in a district “in which a substantial part of the events or omissions giving rise to the claim occurred.” 28 U.S.C. § 1391(b). Plaintiff's claims involve events occurring in the States of Arizona, Colorado, and North Carolina. The State of Arizona, several Arizona law enforcement agencies, and a private citizen in Colorado are named as Defendants. His only allegations tied to Georgia are in Spalding County which is in the Northern District of Georgia. 28 U.S.C. § 90(c)(6). The Court cannot glean any basis for venue in the Middle District of Georgia from Plaintiffs' filings.
A district court is authorized to “dismiss, or if it be in the interest of justice, transfer such case to any district . . . in which it could have been brought.” See 28 U.S.C. § 1406(a). “A significant factor in the interest-of-justice analysis is whether a denial of a transfer would effectively bar the plaintiff from relief in the proper court.” Partee v. Atty. Gen., Ga., 451 Fed.Appx. 856, 858 (11th Cir. 2012) (per curiam). It does not appear on the face of Plaintiff's complaint that the applicable statute of limitations would prevent him from refiling his claims in the proper district in that he appears to allege that the harassment by “Arizona” and/or “Griffin Police department” has been ongoing since his return to Griffin in February 2021. ECF No. 1 at 3. The interests of justice therefore do not weigh in favor of transferring this case to the Northern District of Georgia and this Complaint should be dismissed for improper venue.
IV. Conclusion
For foregoing reasons, it is RECOMMENDED that Plaintiff's Complaint be DISMISSED without prejudice. The Court may not dismiss Plaintiff's Complaint for improper venue without first giving Plaintiff an opportunity to present his views on the issue, see Lipofsky v. N.Y. State Workers Compensation Bd., 861 F.2d 1257, 1258 (11th Cir. 1988). Here, Plaintiff is given the opportunity to present his views on this issue by objecting to this recommendation of dismissal. Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to these recommendations with the Honorable Marc T. Treadwell, Chief United States District Judge, WITHIN FOURTEEN (14) DAYS after being served with a copy of this Recommendation. The parties may seek an extension of time in which to file written objections, 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 RECOMMENDED