Opinion
CV422-110
07-11-2022
ANGELA NAILS, Plaintiff, v. DONNA LONG DAVIS, Defendant.
ORDER
WILLIAM T. MOORE, JR. JUDGE
Before the Court is the Magistrate Judge's May 9, 2022, Report and Recommendation (Doc. 8), to which Plaintiff has responded (Docs. 9, 10, and 12). After a careful review of the record, the report and recommendation (Doc. 8) is ADOPTED as the Court's opinion in this case.
The Court reviews de novo a magistrate judge's findings to which a party objects, and the Court reviews for clear error the portions of a report and recommendation to which a party does not object. 28 U.S.C. § 636(b)(1); see Merchant v. Nationwide Recovery Serv., Inc., 440 F.Supp.3d 1369, 1371 (N.D.Ga. 2020) (citing Macort v. Prem, Inc., 208 Fed.Appx. 781, 784 (11th Cir. 2006) (per curiam) (outlining the standard of review for report and recommendations)).
The Magistrate Judge recommended that this case be dismissed because the Court lacks subject matter jurisdiction. (Doc. 8 at 26.) In response, Plaintiff has filed a "Judge Complaint" against the Magistrate Judge (Doc. 9), a document titled "Appealing" (Doc. 10), and a request for "Reconsideration to Take Action to Refile the Above Case Number" (Doc. 12). Nothing in Plaintiff's responses persuades the Court to depart from the recommendation of the Magistrate Judge to dismiss this case.
First, Plaintiff's attempt to appeal the Magistrate Judge's report and recommendation to the Eleventh Circuit is improper. A report and recommendation is not a final order subject to appeal. Perez-Priego v. Alachua Cnty. Clerk of Ct., 148 F.3d 1272, 1273 (11th Cir. 1998) (per curiam). Therefore, her submission titled "Appealing" did not divest this Court of jurisdiction over this case. See Slaughter v. Gramiak, No. 5:17-cv-90, 2018 WL 4688729, at *1 (S.D. Ga. Sept. 28, 2018). This Court retains the ability to consider the report and recommendation and Plaintiff's responses. Id.
Furthermore, consideration of the substance of Plaintiff's responses shows that they are meritless. None of her submissions identify any defect in the Magistrate Judge's subject matter jurisdiction analysis. Instead, she confirms the fatal defect in her original attempt to plead diversity jurisdiction by admitting that Defendant Donna Long Davis "lives on the other side of the . house" in which Plaintiff lives. (Doc. 9 at 1.) Having pleaded facts inconsistent with diversity jurisdiction and having identified no basis for this Court to exercise federal question jurisdiction, her objections are OVERRULED, and the Complaint is DISMISSED as recommended.
The Magistrate Judge also noted Plaintiff's history of vexatious and frivolous litigation in this Court and in others. (Doc. 8 at 6-10.) Accordingly, the Magistrate Judge recommended the implementation of filing restrictions to protect this Court from Plaintiff's "disregard of its rules and orders." (Id. at 11.) Plaintiff's response to the Magistrate Judge's recommendation only confirms his characterization of her filing patterns as she has attempted not only to file an improper appeal, but also "a new law suit against [the] United States Magistrate Judge . . . ." (Doc. 9 at 2.) For the reasons identified by the report and recommendation, the Court IMPOSES the following filing restrictions:
1. The Clerk shall open a miscellaneous file into which all of Plaintiff's future filings shall be collected. The presiding judge shall review the filings. Only those complaints that allege a plausible claim for relief will be approved for filing. All other cases will be dismissed without any further judicial action after 30 days from the date the complaint was received by the Clerk, unless the Court orders otherwise. Thus, although the Court will read and consider any future IFP application and complaint that she endeavors to file, it will not necessarily enter an order addressing the application or complaint. If no order is forthcoming, then 30 days after the complaint's receipt, the Clerk shall, without awaiting any further direction, notify her that the case has been dismissed without prejudice. The Clerk shall not docket any further motions or papers in that case except for a notice of appeal. If a notice of appeal is filed, the Clerk shall forward a copy of the report and recommendation, this order, the notice of appeal, and the dismissed complaint to the Court of Appeals.
2. To ensure that all of Plaintiff's future pleadings are properly consolidated for review, the Clerk shall personally advise each deputy clerk of the Court's ruling in this case and develop a procedure for ensuring that all of her future complaints are immediately assigned and forwarded to the presiding district judge in this case, regardless of which divisional clerk's office received and docketed the papers.
3. In any case approved for filing, Plaintiff must post a $1,000 contempt bond with the Clerk of Court. The bond will be held by the Clerk of Court and returned to her at the conclusion of the case, if she conducts her affairs appropriately.
4. Plaintiff may file a motion to modify or rescind the order imposing these restrictions no earlier than two years from the date of its entry.
5. These filing restrictions do not apply to any criminal case in which Plaintiff is named as a defendant, or to any proper application for a writ of habeas corpus.
A copy of this order imposing these restrictions shall be forwarded to each judicial officer in this District.
For the foregoing reasons, the Plaintiff's objections are OVERRULED, the report and recommendation (Doc. 8) is ADOPTED as the Court's opinion in this case, and Plaintiff's Complaint is DISMISSED. Additionally, the Court IMPOSES the filing restrictions against Angela Nails identified above. The Clerk of Court is DIRECTED to close this case.
Plaintiff's Motion for Leave to Appeal In Forma Pauperis (Doc. 14) is also DISMISSED AS MOOT.
SO ORDERED