IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA 

EASTERN DIVISION

GEORGE D. McCARLEY, )

)

Plaintiff, )

)

v. ) 3:06-CV-00663-MHT-DRB

) WO

CITY OF ROANOKE, et al., )

)

Defendants. )

RECOMMENDATION OF THE MAGISTRATE JUDGE

Because this complaint by a frequent pro se filer fails to invoke the jurisdiction of this

federal court, and the Plaintiff has been afforded a reasonable opportunity to remedy jurisdictional

defects, the Magistrate Judge now recommends DISMISSAL prior to service of the complaint,

pursuant to 28 U.S.C. § 1915. 

I. BACKGROUND 

Upon referral of the Complaint docketed July 25, 2006, for disposition or recommendation

on all pretrial matters, the undersigned Magistrate Judge noted patent deficiencies with respect to

(1) the basis of a cognizable cause of action against each named defendant; (2) Plaintiff’s requested

class certification; and (3) persons being sued who may be immune from suit. In deference to the

plaintiff’s pro se status, the court issued on July 31, 2006, an Order which informed the Plaintiff,

George D. McCarley (“McCarley”) of these deficiencies and set a pre-service hearing, pursuant to

28 U.S.C § 1915(e). The Order(Doc. 5) also summarized pertinent rules and requirements for a

federal civil complaint.

The court allowed McCarley to explain the factual basis for his intended lawsuit which

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designates 15defendants: the City of Roanoke, its Municipal Court Clerk, City Manager,

Prosecutor/Municipal Attorney, Municipal Court Judge, Mayor, City Clerk, former Mayor, and an

individual poll worker of the City; the Alabama Attorney General, an Examiner, a Hearing Officer,

the Commissioner, the Assistant Commissioner, and a corporate tax division employee for the

Alabama Department of Revenue. Discussion underscored the court’s preliminary view that the

complaint fails to invoke federal jurisdiction. Nonetheless, in an ORDER DIRECTING AMENDED

COMPLAINT OR DISMISSAL OF DEFICIENT COMPLAINT (Doc. 8, Sept. 1, 2006), the court

provided a month, until October 2, 2006, for McCarley to attempt to state any viable federal cause

of action against any defendants who are not immune from suit, or to file a Motion for Leave to

Withdraw his Complaint and end this federal litigation. The Order repeated the court’s advice to

McCarley at the pre-service hearing that he should consult with a competent lawyer about the merits

of his action and --

a. that the court will not permit the filing of multiple complaints in a single pleading as it

appears the plaintiff seeks to do by outlining one complaint at pages 1-10 and a second complaint

at pages 11-38;

b. that the purported complaints are subject now to dismissal for failure to state a claim for

which relief can be granted against the designated defendants in federal court. Upon notice of the

plaintiff’s deficient understanding of the “federal question” jurisdiction he seeks to invoke, the court

specified how the numbered paragraphsthrough page 10 (i) fail absolutely to state a cognizable claim

for the asserted violations of plaintiff’s First and Fourteenth Amendment rights; and (ii) seek

damages and remedies against defendants who are either immune or cannot be held responsible for

the action identified as the basis for his complaints, a purportedly unfounded complaint from a non

party, private realtor for his arrest. 

 In lieu of meeting the October 2 deadline, McCarley filed a Motion, docketed on October

4, seeking an extension for an unspecified period based on various conflicts and difficulties

in securing counsel. In principal deference to his s status as a non-lawyer and his apparent

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good faith in seeking legal advice regarding the propriety of continuing his action, the court

extended his deadline for another month, until November 2, but advised:

Plaintiff is advised that the court deems the time allotted more than reasonably

adequate in light of his representations concerning the nature of the claims he wishes to

assert as well as the court's specific advice on not only the limited scope of claims subject to

federal jurisdiction but also the entitlement of certain named defendants to assert various

immunities. Consequently, any further claims for continuances -- absent extraordinary

justification -- will not be viewed favorably. 

(Doc. 10)

On the November 2 deadline, McCarley filed yet another Motion for Continuance (Doc. 11),

alleging (a) his difficulties in meeting this court’s deadline and another deadline for pleadings in his

other pro se complaints in this court, and (b) his unsuccessful efforts to secure counsel, marked by

“two significant responses: (1)“....you should be prepared for the case to be remanded to a Federal

Prosecutor, and (2) “...attorney’s need to get paid”. McCarley acknowledged, as follows, the court’s

prior notice of adverse consequences in the event of his non-compliance with the twice-extended

deadline: “Should the Court decide against continuance,then McCarley has no other option except

to request permission to withdraw these complaints.” In denying a third continuance, the court

explained: 

After consideration of the Motion for Continuance , filed by this pro se plaintiff on

November 2, 2006 (Doc. 11), the court concludes that there is no compelling

justification for any further continuance, that this Plaintiff received reasonable

notice that no further continuance would be granted for the reasons stated in its

Order filed October 5, 2006 (Doc. 10), and that the interests of judicial integrity and

judicial economy would be disserved by protracting this litigation any further as the

record is clear that Plaintiff cannot state a valid claim for which relief can be granted

in this federal court against the defendants designated. This frequent pro se plaintiff’s

history of meritless lawsuits in this court is well-documented and serves to buttress the

court’s conclusion. See Order and Recommendation of the Magistrate Judge (Doc. 16,

October 10, 2006), Civil Action No. 3:06CV91(involving 15 lawsuits filed this year

in this court). 

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II. DISCUSSION

Construed liberally, McCarley’s Complaint seeks to hold the city and various officers –

including its judge, mayor, and prosecutor – along with the state attorney general and various state

officers, liable in monetary damages, for a purportedly unfounded complaint for his arrest filed by

a non-party, private realtor. Diversity of citizenship is patently absence, and no federal question is

presented. The court has deferred significantly to the plaintiff’s status as a non-lawyer, pro selitigant

by providing written guidance on the parameters of federal jurisdiction, by conducting an in-court

conference to detail the futility of pursuing his complaint in federal court, and by providing liberal

deadlines for an amended complaint. Having had at least three months to secure counsel and

otherwise sustain this action, McCarley acknowledges that he cannot now state a valid claim for

relief in this federal court against the named defendants. 

Permitting the present complaint to be servedwouldnot only unnecessarily burden this court

with frivolous litigation but also burden both city and state taxpayers who would bear inevitably the

litigation defense of the governmental entities and officials named as defendants. Allowing further

continuances for an amended complaint would undermine this court’s own rules and its institutional

integrity given this court’s determination that the grievances articulated by McCarley at the preservice hearing simply do not invoke this court’s subject-matter jurisdiction. 

III. CONCLUSION

It is, therefore, the Recommendation of the Magistrate Judge, that this action, be

dismissed prior to service of process and without prejudice, pursuant to 28 U.S.C.§ 1915(e)(2),

because it is frivolous or malicious, fails to state a claim on which relief may be granted, and also

seeks monetary relief against a defendant who is immune from such relief.

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It is further ORDERED that Plaintiff file any objections to this Recommendation not

later than November 20, 2006. Any objections filed must specifically identify the findings in the

Magistrate Judge'sRecommendation to which the party is objecting. Frivolous, conclusive or general

objections will not be considered by the District Court. The parties are advised that this

Recommendation is not a final order of the court and, therefore, it is not appealable.

Failure to file written objections to the proposed findings and advisements in the Magistrate

Judge's Recommendation shall bar the party from a de novo determination by the District Court of

issues covered in the Recommendation and shall bar the party from attacking on appeal factual

findings in the Recommendation accepted or adopted by the District Court except upon grounds of

plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982). See Stein v.

Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d

1206 (11th Cir. 1981)(en banc), adopting as binding precedent all of the decisions of the former Fifth

Circuit handed down prior to the close of business on September 30, 1981.

DONE THIS 6 day of November, 2006. th

/s/ Delores R. Boyd

DELORES R. BOYD

UNITED STATES MAGISTRATE JUDGE

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