United States District Court, S.D. Georgia, Augusta Division
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
BRIAN K. EPPS, Magistrate Judge.
Plaintiff, an inmate incarcerated at Augusta State Medical Prison in Grovetown, 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 that 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 has upheld the constitutionality of § 1915(g) 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. Rivera v. Allin , 144 F.3d 719, 721-27 (11th Cir. 1998), abrogated on other grounds by Jones v. Bock , 549 U.S. 199 (2007).
A. The Complaint Should Be Dismissed Because Plaintiff Has Three Strikes Under § 1915(g) and Does Not Qualify for the Imminent Danger Exception, and Therefore He Cannot Proceed IFP.
A review of Plaintiff's history of filings reveals that he has brought at least three cases that were dismissed for being frivolous or malicious or for failing to state a claim upon which relief may be granted: (1) Allen v. Millsap, 412-CV-290-HLM-WEJ (N.D.Ga. Nov. 26, 2012) (dismissed as frivolous); (2) Allen v. Owens, CV 112-143 (S.D. Ga. Sept. 21, 2012) (dismissed for failure to state a claim); and (3) Allen v. Brown, CV 112-052 (S.D. Ga. Apr. 11, 2012) (dismissed for failure to state a claim and abuse of judicial process). All of these previous cases qualify as strikes under § 1915(g) because they were dismissed for failing to state a claim. Because Plaintiff has at least three strikes under § 1915(g), he 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).
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). Here, Plaintiffs complaint alleges that in December of 2013, he was assaulted by a correctional officer who was involved in forcing Plaintiff to take medication that he did not want but that Defendant Young had ordered to be administered. (See doc. no. 1, p. 5.) Plaintiff refers to an incident that occurred approximately seven months before he signed and filed his current complaint on July 30, 2014. (Id. at 5-6.) Although Plaintiff states in conclusory fashion that he is "still in an (eminent) threat of danger, " (id. at 6), Plaintiff's vague fear does not by itself demonstrate that he was in any imminent danger when he filed his complaint. Medberry , 185 F.3d at 1193. Therefore, Plaintiff 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.
B. The Complaint Should Also Be Dismissed Because Plaintiff Failed to Disclose His Prior Cases.
Moreover, the form complaint that Plaintiff used to commence this case, "Form to be Used by Prisoners In Filing a Complaint Under the Civil Rights Act, 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. 1-3.) The Eleventh Circuit has indicated its approval of dismissing a case based on dishonesty in a complaint. In Rivera, the Court of Appeals reviewed a prisoner plaintiff's filing history for the purpose of determining whether prior cases counted as "strikes" under the PLRA and stated:
The district court's dismissal without prejudice in Parker is equally, if not more, strike-worthy. In that case, the court found that Rivera had lied under penalty of perjury about the existence of a prior lawsuit, Arocho. As a sanction, the court dismissed the action without prejudice, finding that Rivera "abuse[d] the judicial process[.]"
Rivera , 144 F.3d at 731; see also Young v. Sec'y Fla. Dep't of Corr., 380 F.Appx. 939, 940-41 (11th Cir. 2011) (per curiam) (affirming dismissal under inherent power of federal courts based on a plaintiffs failure ...