Blount v. Wells, No. 1:2019cv00092 - Document 33 (S.D. Ga. 2020)

Court Description: ORDER denying as moot 27 Motion for Certificate of Appealability; denying 28 Motion for Leave to Appeal in forma pauperis; denying 32 Motion for Leave to Appeal in forma pauperis. This case remains closed. Signed by Chief Judge J. Randal Hall on 01/22/2020. (jlh)

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Blount v. Wells Doc. 33 IN THE TOTITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION OBATALA BLOUNT, * Plaintiff, * * V. * CV 119-092 DOCTOR WAYNE DARRELL WELLS; * JONE CIMS; DOCTOR MULLOY; * SUPERIOR COURT JUDGE CHARLES * P. ROSE JR.; DOCTOR BURKS; * TERRANCE KILPATRICK; KELVIN * SPRAYBERRY; ALISHA HAMMOCK * EVANS; CINDY L. SMITH; JAMES D. SMITH; SHARON LEWIS; ANDREW N. YOUNG; and KATHY SMITH, * * * * Defendants. * ORDER Before the Court are the following motions: (1) Plaintiff's motion for a certificate of Plaintiff's motion for leave to appealability (Doc. 27); (2) appeal in forma pauperis ("IFP") (Doc. 28); and (3) Plaintiff's second motion for leave to appeal IFP (Doc. 32). For the following reasons, the motions are DENIED. I. BACKGROUND Plaintiff, proceeding pro se, is an inmate at Hays State Prison in Trion, Georgia. initial complaint alleged (R. & R., Doc. 16, at 1.) Section 1983 claims for Plaintiff's deliberate indifference to his serious medical needs against Defendant Dr. Dockets.Justia.com Wells. (See Compl., Doc. 1, at 4, 8-10.) Later, Plaintiff filed an amended complaint asserting a host of claims against multiple defendants. (See generally. Am. Compl., Doc. 9.) In screening Plaintiff's complaint. United States Magistrate Judge Brian K. Epps found that Plaintiff's form complaint failed to truthfully disclose his relevant litigation history. at 3-5; see Plaintiff's dismissing also Am. Compl., at 19-20.) dishonesty. the case Magistrate without Judge prejudice. As a sanction for Epps (R. (R. & R., recommended & R., at 7.) Magistrate Judge Epps also concluded that Plaintiff improperly joined unrelated claims and defendants in his amended complaint. (Id. at 5-6.) Over Plaintiff's objections (Docs. 18, 21), the Court adopted the Report and Recommendation as to its proposal that the case be dismissed due to Plaintiff's dishonesty in his complaint and analysis that Plaintiff improperly attempted to join unrelated claims and defendants.^ (Order, Doc. 23, at 2-4.) The Court, however, did not adopt improper joinder as an alternative reason for dismissing the action. (Id. at 3.) After the Court's dismissal of Plaintiff's action. Plaintiff filed his notice of appeal (Doc. 26), motion for a certificate of appealability (Doc. 1 As a result of the dismissal of the action, the Court also denied Plaintiff's motions for a protective order and appointment of counsel (Docs. 14, 19). (Order, Doc. 23, at 4.) 21), motion for leave to appeal IFP (Doc. 28), and second motion for leave to appeal IFP (Doc. 32). II. DISCUSSION The Court first addresses Plaintiff s motion for a certificate of appealability and then turns to Plaintiff s motions for leave to appeal IFP. A. Motion for Certificate of Appealability As noted above, the now-dismissed action alleged Section 1983 violations. A certificate of appealability is not required for an appeal of a Section 1983 action. Riley v. Nmwabueze, No. 6:15- cv-29, 2016 WL 5110254, at *1 (S.D. Ga. Sept. 20, 2016); see also Jackson v. Fla. Dep^t of Corr., 491 F. App'x 129, 131, 131 n.l, 133 (llth Cir. 2012) (per curiam) (affirming denial of certificate of appealability as unnecessary when the district court dismissed Plaintiffs Section 1983 case as a sanction for abuse of the judicial process for the plaintiffs failure to disclose prior litigation). Accordingly, Plaintiffs motion for certificate of appealability is moot. B. Motions to Proceed on Appeal IFP The requirements for litigants seeking to proceed IFP on appeal are set forth in 28 U.S.C. ยง 1915. In addition to certain financial requirements, section 1915(a)(3) provides: "An appeal may not be taken [IFP] if the trial court certifies in writing that it is not taken in good faith." Additionally, if a party receives IFP status in the district court action, Federal Rule of Appellate Procedure 24(a)(3) applies: ''A party who was permitted to proceed [IFP] in the district[]court action . . . may proceed on appeal [IFP] without further authorization, unless: (A) the district court . . . certifies that the appeal is not taken in good faith . . . ." Plaintiff received permission to proceed in the district court action IFP. (June 26, 2019 Order, Doc. 8, at 1.) Therefore, Plaintiff may proceed on appeal IFP without further authorization unless the appeal is not taken in good faith. An appeal is not taken in good faith if it is frivolous. Coppedge v. United States, 369 U.S. 438, 445 (1962). See For purposes of a motion to proceed IFP, an appeal is ^^frivolous if it is without arguable Preslicka, 314 merit either in law F.3d 528, 531 (11th or fact." Napier v. Cir. 2002) (citation and internal quotation marks omitted). '^^There is no absolute right to be allowed to proceed [IFP] in civil matters; rather it is a privilege extended to those unable to pay filing fees when the action is not frivolous or malicious." Startti v. United States, 415 F.2d 1115, 1116 (5th Cir. 1969) (per curiam). In determining whether to grant a motion to proceed on appeal IFP, trial courts possess ''wide discretion" and recognize the privilege should be extended "sparingly." Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1306 (11th Cir. 2004) (per curiam) (citation omitted). Here, Plaintiff's appeal is not taken in good faith. Plaintiff's first and second motions to appeal IFP do not set forth enumerations of error. Instead, Plaintiff spells out the asserted errors in his notice of appeal. Only the first enumeration of error relates to the reason for the dismissal of this action. Plaintiff's Plaintiff failure denies to filing disclose the relevant additional litigation actions he history. failed to disclose on the complaint in the present action claiming the past lawsuits contained doctored documents used to dismiss the present action. (Notice of Appeal, at 1.) Plaintiff offers no evidence of the purported scheme to manufacture past cases for the purpose of dismissing newly filed actions. The remainder of Plaintiff s enumerations relating to his dishonesty also lack merit. Second, Plaintiff contends the Court erred in dismissing his case for misjoinder of claims and parties. (Id.) The Order dismissing Plaintiff s case expressly refrained from adopting misjoinder as an alternative ground for dismissal. Plaintiff next claims the Court erred in refusing to grant Plaintiff's protective order. (Id. at 2.) needed. bring Following dismissal, no protective order was Finally, Plaintiff argues the Court erred in failing to the nondisclosed litigation to Plaintiff's attention. Magistrate Judge Epps noted the cases Plaintiff failed to disclose in his Report and Recommendation. Once brought to Plaintiff's attention, he continued to claim he never filed the additional cases in his supplemental objection to the Report and Recommendation {Suppl. Obj., Doc. 21, at 1-2) and makes the same argument still. Plaintiff received notice of his omissions and took no action to correct them. Accordingly, the Court discerns no non-frivolous issues for appeal and certifies the appeal is not taken in good faith. Because Plaintiff offers no additional enumerations of error in his second motion for leave to appeal IFP, that motion is also denied. III. CONCLUSION Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff's motion for a certificate of appealability (Doc. 27) is DENIED AS MOOT, Plaintiff's motion for leave to appeal IFP (Doc. 28) is DENIED, and Plaintiff's second motion for leave to appeal IFP (Doc. 32) is DENIED. Pursuant to Federal Rule of Appellate Procedure 24(a)(4), the Clerk is DIRECTED to transmit this Order to the Eleventh Circuit Court of Appeals. This case remai^ CLOSED. ORDER ENTERED at Augusta, Georgia, this C>0( day of January, 2020. J. HALL,'^ CHIEF JUDGE STATES DISTRICT COURT SOUTHS^N DISTRICT OF GEORGIA

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