IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION

ERVIN JOINER, : : Plaintiff, : : VS. : : NO. 5:25-cv-00144-MTT-CHW JONATHAN P. WATERS, : : Defendant. : _________________________________

ORDER & RECOMMENDATION OF DISMISSAL

Plaintiff Ervin Joiner, who is currently a prisoner in the Coffee Correctional Facility in Nicholls, Georgia, has filed civil rights complaint under

. ECF Nos. 1 & 10. He has also filed a motion for leave to proceed in this action in forma pauperis (“IFP”). ECF Nos. 11 & 12. On review of Plaintiff’s submissions, his motion to proceed IFP (ECF Nos. 11 & 12) is GRANTED, as discussed below. It is RECOMMENDED, however, that Plaintiff’s complaint be DISMISSED WITHOUT PREJUDICE for failure to state a claim for relief. MOTION FOR LEAVE TO PROCEED IFP Plaintiff seeks leave to proceed without prepayment of the filing fee or security therefor pursuant to

(a). ECF Nos. 11 & 12. As it appears Plaintiff is unable to prepay the cost of commencing this action, his application to proceed IFP is hereby GRANTED. However, even if a prisoner is allowed to proceed IFP, he must nevertheless pay the full amount of the $350.00 filing fee.

(b)(1). If the prisoner has sufficient assets, he must pay the filing fee in a lump sum. If sufficient assets are not in the account, the court must assess an initial partial filing fee based on the assets available.

Despite this requirement, a prisoner may not be prohibited from bringing a civil action because he has no assets and no means by which to pay the initial partial filing fee.

(b)(4). In the event the prisoner has no assets, payment of the partial filing fee prior to filing will be waived. Plaintiff’s submissions indicate that he is unable to pay an initial partial filing fee. Accordingly, it is hereby ORDERED that his complaint be filed and that he be allowed to

proceed without paying an initial partial filing fee. I. Directions to Plaintiff’s Custodian Plaintiff is required to make monthly payments of 20% of the deposits made to his prisoner account during the preceding month toward the full filing fee. The clerk of court is DIRECTED to send a copy of this Order to the business manager of the facility in which

Plaintiff is incarcerated. It is ORDERED that the warden of the institution in which Plaintiff is incarcerated, or the sheriff of any county in which he is held in custody, and any successor custodians, shall 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 account at said institution until the $350.00 filing fee has been paid in full.

(b)(2). In

accordance with provisions of the Prison Litigation Reform Act (“PLRA”), Plaintiff’s custodian is authorized to forward payments from the prisoner’s account to the clerk of court each month until the filing fee is paid in full, provided the amount in the account exceeds $10.00. It is ORDERED that collection of monthly payments from Plaintiff’s trust fund account continue until the entire $350.00 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 Plaintiff should keep in mind that his release from incarceration/detention does not release him from his obligation to pay the installments incurred while he was in custody. Plaintiff remains obligated to pay those installments justified by the income in his prisoner

trust account while he was detained. If Plaintiff fails to remit such payments, the Court authorizes collection from Plaintiff of any balance due on these payments by any means permitted by law. 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. PRELIMINARY REVIEW OF PLAINTIFF’S COMPLAINT

I. Standard of Review The PLRA directs courts to conduct a preliminary screening of every complaint filed by a prisoner who seeks redress from a government entity, official, or employee. 28 U.S.C. § 1915A(a). Courts must also screen complaints filed by a plaintiff proceeding IFP.

(e). Both statutes apply in this case, and the standard of review is

the same. “Pro se filings are generally held to a less stringent standard than those drafted by attorneys and are liberally construed.” Carmichael v. United States,

(11th Cir. 2020) (citation 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); see also

(e).

A claim is frivolous if it “lacks an arguable basis either in law or in fact.” Miller v. Donald,

(11th Cir. 2008) (citations omitted). On preliminary review, the Court may dismiss claims that are based on “indisputably meritless legal” theories and “claims whose factual contentions are clearly baseless.”

(citations omitted). A claim can be dismissed as malicious if it is knowingly duplicative or otherwise amounts to an abuse of the judicial process. Daker v. Ward,

(11th Cir. 2021) (affirming dismissal of duplicative complaint “in light of [prisoner’s] history as a prolific serial filer”). 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,

(2009) (quoting Bell Atl. Corp. v. Twombly,

(2007)).

“Factual allegations [in a complaint] must be enough to raise a right to relief above the speculative level . . . .” Twombly,

(citations omitted). In other words, the complaint must allege enough facts “to raise a reasonable expectation that discovery will reveal evidence” supporting a claim.

. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal,

(citing Twombly,

). 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.,

(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, e.g., Bingham v. Thomas,

(11th Cir. 2011) (affirming dismissal of certain claims at preliminary screening because prisoner failed to allege sufficient facts to show a violation of his rights), abrogated on other grounds by Wade v. McDade,

, 1255 (11th Cir. 2024) (en banc). II. Factual Allegations

In his complaint, Plaintiff asserts that Defendant Jonathan Waters, Plaintiff’s defense attorney in a criminal case against him, violated Plaintiff’s rights by refusing to withdraw from Plaintiff’s case after Plaintiff notified Waters that he was unsatisfied with Waters’s services. ECF No. 10 at 5. Plaintiff also contends that Waters failed to explain Plaintiff’s appeal rights to him or to file an appeal after Plaintiff asked him to do so.

Plaintiff next says that Waters told the District Attorney that he was trying to get Plaintiff to take a plea deal and that Waters pressured Plaintiff into accepting a plea agreement even though he knew that an officer and the District Attorneys Office had acted illegally against Plaintiff.

Finally, Plaintiff alleges that the terms of his plea agreement were changed from what he agreed to, but that no one explained the changes to him until after he had

signed the agreement.

. III. Plaintiff’s Claims The only person that Plaintiff names as a defendant in this action is his defense attorney, Jonathan Waters. “In order to prevail on a civil rights action under § 1983, a plaintiff must show that he or she was deprived of a federal right by a person acting under color of state law.” Griffin v. City of Opa-Locka,

, 1303 (11th Cir. 2001)

(emphasis added). A person acts under color of state law when exercising power “possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.” United States v. Classic,

(1941). Moreover, the Supreme Court has held that “a public defender does not act under color of state law when performing a lawyer’s traditional functions as counsel to a defendant in a criminal proceeding.” Polk Cnty. v. Dodson,

(1981).

Here, Plaintiff complains about Waters’s performance as his lawyer. He does not allege any facts to show that Waters was acting outside of the traditional functions of his position as Plaintiff’s lawyer. Therefore, Waters was not acting under color of state law, and Plaintiff has not stated a claim for relief against him under § 1983. It is, therefore, RECOMMENDED that this complaint be DISMISSED WITHOUT PREJUDICE for

failure to state a claim. OBJECTIONS Pursuant to

(b)(1), the parties 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 after being served with a copy of this order and

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. Any objection is limited in length to TWENTY (20) PAGES. See M.D. Ga. L.R. 7.4. 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, this 24th day of October, 2025.

s/ Charles H. Weigle Charles H. Weigle United States Magistrate Judge