United States District Court, S.D. Georgia, Dublin Division
SGT. MORRIS J. CLARINGTON, III, Plaintiff,
PATRICIA LUMPKIN, Chief Counselor; MRS. BRAGGS, Counselor; CAPTAIN PAULA DUNKIN; JOHN DOE(S), CERT Team, Johnson State Prison; and JOHNSON STATE PRISON, Administration Department, Defendants.
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
BRIAN K. EPPS, Magistrate Judge.
Plaintiff, an inmate presently incarcerated at Johnson State Prison in Wrightsville, Georgia, seeks to proceed in forma pauperis ("IFP") in this action filed pursuant to 42 U.S.C. § 1983. For the reasons set forth below, the Court REPORTS and RECOMMENDS that Plaintiff's request to proceed IFP be DENIED (doc. no. 2) and this action be DISMISSED without prejudice.
A prisoner attempting to proceed IFP in a civil action in federal court must comply with the mandates of the Prison Litigation Reform Act ("PLRA"), Pub. L. No. 104-134, §§ 801-810, 110 Stat. 1321 (1996). 28 U.S.C. § 1915(g) of the PLRA provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
The Eleventh Circuit noted that "[t]his provision of the PLRA, commonly known as the three strikes provision, requires frequent filer prisoners to prepay the entire filing fee before federal courts may consider their lawsuits and appeals." Rivera v. Allin , 144 F.3d 719, 723 (11th Cir. 1998) (internal citations omitted), abrogated on other grounds by Jones v. Bock , 549 U.S. 199 (2007). Section 1915(g) is constitutional because it does not violate an inmate's right to access to the courts, the doctrine of separation of powers, an inmate's right to due process of law, or an inmate's right to equal protection. Id . at 721-27.
A. Prior Filing History
A review of Plaintiff's history of filings reveals that he has brought at least five cases that were dismissed for being frivolous or malicious or for failing to state a claim upon which relief may be granted: (1) Clarington v. Wilcox State Prison, 5:13-cv-00012 (M.D. Ga. Apr. 24, 2013) (dismissed for abuse of judicial process and failure to comply with a court order); (2) Clarington v. Chatman, 5:12-cv-00035 (M.D. Ga. Apr. 20, 2012) (dismissed for failure to comply with a court order); (3) Clarington v. Walker, 5:12-cv-00037 (M.D. Ga. Apr. 20, 2012) (dismissed for failure to comply with a court order); (4) Clarington v. Walker, 5:12-cv-00038 (M.D. Ga. Mar. 8, 2012) (dismissed for failure to comply with a court order); (5) Clarington v. Hayes, 5:07-cv-00388 (M.D. Ga. Aug. 14, 2008) (dismissed for failure to comply with a court order).
A dismissal for failure to comply with a court order qualifies as a strike under § 1915(g). See Rivera , 144 F.3d at 731 (a case dismissed as an "abuse of the judicial process" counts as a strike under § 1915(g)); Malautea v. Suzuki Motor Co., Ltd. , 987 F.2d 1536, 1544 (11th Cir. 1993) (holding that failure to comply with court orders is an "abuse of the judicial process"). Because he has at least three strikes under § 1915(g), Plaintiff cannot proceed IFP in the present case unless he can demonstrate that he qualifies for the "imminent danger of serious physical injury" exception to § 1915(g).
B. Plaintiff Does Not Qualify for the "Imminent Danger" Exception
In order to come within the imminent danger exception, a prisoner must be in imminent danger at the time he files suit in district court, not at the time of the alleged incident that serves as the basis for the complaint. Medberry v. Butler , 185 F.3d 1189, 1193 (11th Cir. 1999). Nothing in Plaintiff's complaint supports a finding of imminent danger of serious physical injury at the time he commenced this case. Plaintiff alleges only that Defendants will not transfer him to another facility even though he was previously beaten by purported gang members at Johnson State Prison. (See doc. no. 1, p. 5.) Instead, Plaintiff states that he remains in lockdown at Johnson State Prison. (Id.) Because Plaintiff was in lockdown when he filed this suit and therefore not in imminent danger of another attack from these gang members, he fails to demonstrate that he should be excused from paying the full filing fee under the "imminent danger" exception to § 1915(g)'s three strike rule. Medberrry, 185 F.3d at 1193.
C. Dishonesty in Complaint
The form complaint that Plaintiff used to commence this case, "Questionnaire for the Prisoners Proceeding Pro Se Under 42 U.S.C. § 1983, " requires that prisoner plaintiffs disclose: (1) whether they have brought other federal lawsuits while incarcerated, (2) whether they were allowed to proceed IFP in any such lawsuits, and (3) whether any such suit was dismissed on the ground that it was frivolous, malicious, or failed to state a claim. (Doc. no. 1, pp. 2-3.) Here, Plaintiff indicated he had never previously filed a lawsuit in federal court. (Id.) However, in addition to the five cases discussed above, the Court is aware of at least nine other § 1983 cases that Plaintiff previously filed in federal court. See Clarington v. Food Service, 5:12-cv-00086 (S.D. Ga. Oct. 24, 2012); Clarington v. Burnette, 5:12-cv-00008 (S.D. Ga. Oct. 22, 2012); Clarington v. Coffee Correctional Facility, 5:12-cv-02824 (N.D.Ga. Apr. 11, 2012); Clarington v. Chatman, 6:12-cv-00013 (S.D. Ga. Mar. 22, 2012); Clarington v. Chatman, 6:11-cv-00068 ...