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Jackson v. State

United States District Court, S.D. Georgia, Savannah Division

March 3, 2017

RODERICK BO JACKSON, Plaintiff,
v.
STATE OF GEORGIA, et al, Defendant.

          REPORT AND RECOMMENDATION

         Roderick Bo Jackson brings this 42 U.S.C. § 1983 action, alleging various constitutional violations related to his confinement at Chatham County Jail.[1] See doc. 1. He also seeks leave to proceed in forma pauperis (IFP). Doc. 2. Although he is indigent, Jackson is precluded from proceeding IFP by the "three strikes" provision of the Prison Litigation Reform Act (PLRA). 28 U.S.C. § 1915(g).

         The PLRA precludes IFP status for plaintiffs who have "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." 28 U.S.C. § 1915(g). "After three meritless suits, the prisoner must pay the full filing fee when he initiates suit; his failure to do so warrants dismissal without prejudice." Schmidt v. Rodrigues, 641 F.App'x 913, 916 (11th Cir. 2016) (citing Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002)).

         Jackson discloses only one previous lawsuit in this Court, which he claims is "still pending." Doc. 1 at 3 (referring to Jackson v. Phillips, CV415-127, doc. 1 (S.D. Ga. May 11, 2015) (Complaint)). Despite his assertion, that case (also brought IFP) was dismissed as frivolous in 2015. See Jackson v. Phillips, CV415-127, doc. 3 (granting IFP), doc. 6 at 4 (S.D. Ga. Oct. 8, 2015), adopted doc. 9 (S.D. Ga. Nov. 25, 2015). The Report and Recommendation recommending that dismissal points out that that case was "one of four civil cases Jackson has commenced in this Court." Id. at 1 n. 1 (emphasis added). The other three were also dismissed as frivolous. See Jackson v. Grogan, CV415-079, doc. 3 (S.D. Ga. April 2, 2015) (granting IFP), doc. 7 (Oct. 8, 2015) (recommending dismissal "sua sponte as legally frivolous or, at the very least, for failure to state a claim."), adopted doc. 10 (29, 2015); Jackson v. Ruffmi, CV414-250, doc. 3 (Nov. 20, 2014) (granting IFP), doc. 10 (Oct. 8, 2015)(recommending dismissal as frivolous), adopted doc. 13 (Nov. 10, 2015); Jackson v. Grogan, CV414-249, doc. 3 (Nov. 20, 2014) (order granting IFP), doc. 11 (Oct. 8, 2015) (recommending dismissal as frivolous), adopted doc. 15 (Nov. 25, 2015). He alleged in all of his previous suits that he was incarcerated. Jackson v. Phillips, CV415-127, doc. 1 (May 11, 2015) (Complaint); Jackson v. Grogan, CV415-079, doc. 1 (April 1, 2015) (same); Jackson v. Ruffmi, CV414-250, doc. 1 (Nov. 17, 2014) (same); Jackson v. Grogan, CV414-249, doc. 1 (Nov. 17, 2014) (same). Since all four of Jackson's prior civil actions in this Court were brought while he was a prisoner, pursued IFP, and dismissed as "frivolous, " he has struck out.[2]

         Despite his failure to disclose all of his prior cases, Jackson apparently recognized the risk that he has exhausted his § 1915(g) strikes. He has attached an addendum to his Complaint, addressed to the Clerk of this Court, "RE: Civil Action § 1983, " alleging his "life is under imminent danger of serious physical injury O.C.G.A. § 42-12-7.2."[3] Doc. 1 at 42. Conclusory and general allegations of possible physical harm are not sufficient to invoke the imminent-danger exception to § 1915(g)'s three-strikes bar. See Sutton v. District Attorney's Office, of Gwinnett Superior Court, Georgia, 334 F.App'x 278, 279 (11th Cir. 2009) (quoting Brown v. Johnson, 387 F.3d 1344, 1350 (2004) ("[G]eneral assertions [of health risk], even construed liberally are 'insufficient to invoke the exception to § 1915(g) absent specific fact allegations of ongoing serious physical injury, or of a pattern of misconduct evidencing the likelihood of imminent serious physical injury.'")). Accordingly Jackson's bare assertion of imminent danger, in the absence of any indication of which facts in his 43-page Complaint might be intended to support it, is insufficient.

         Jackson has more than exhausted his three strikes under 28 U.S.C. § 1915(g), and has not established entitlement to the imminent-danger exception. Accordingly, his IFP motion, doc. 2, should be DENIED. Within 14 days of the date that this Report and Recommendation (R&R) is served, Jackson must pay the full filing fee or his Complaint should be DISMISSED without prejudice.

         This R&R is submitted to the district judge assigned to this action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court's Local Rule 72.3. Within 14 days of service, any party may file written objections to this R&R with the Court and serve a copy on all parties. The document should be captioned "Objections to Magistrate Judge's Report and Recommendations." Any request for additional time to file objections should be filed with the Clerk for consideration by the assigned district judge.

         After the objections period has ended, the Clerk shall submit this R&R together with any objections to the assigned district judge. The district judge will review the magistrate judge's findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to timely file objections will result in the waiver of rights on appeal. 11th Cir. R. 3-1; see Symonett v. V.A. Leasing Corp., 648 F.App'x 787, 790 (11th Cir. 2016); Mitchell v. U.S., 612 F.App'x 542, 545 (11th Cir. 2015).

         SO REPORTED AND RECOMMENDED.

---------

Notes:

[1] Jackson filed his Complaint and IFP motion on state-court forms, captioned for the Superior Court of Chatham County, Georgia. Doc. 1 at 1, doc. 2 at 1. It is possible that he intended to file his Complaint in that Court, but the internal indications are ambiguous. He asserts violations of the U.S. Constitution ("1st Amendment and 8th, 14th Amendment violations against my constitutional rights"), doc. 1 at 1, and, as discussed below, he has attached an addendum addressed to the Clerk of this Court, id. at 42. For the reasons explained below, he is not entitled to proceed IFP in this Court, so his Complaint is due for dismissal unless he pays the full fee. If he intended to file his Complaint in the Superior Court of Chatham County, he may voluntarily dismiss this case under Fed.R.Civ.P. 41(a), or, as discussed below, take no further action and it will be dismissed without prejudice.

[2] Jackson has had another prisoner-IFP case dismissed by this Court. See Jackson v. St. Lawrence, CV414-259, doc. 1 (S.D. Ga. Nov. 24, 2014), doc. 3 (Dec. 1, 2014) (granting IFP), doc. 6 (Feb. 23, 2015) (recommending dismissal), adopted, doc. 8 (April 27, 2015). The recommendation of dismissal does not expressly state that his claim was frivolous, and it was dismissed without prejudice. See CV414-259, doc. 6 (Feb. 23, 2015) (recommending dismissal), adopted, doc. 8 (April 27, 2015) (dismissing without prejudice). No "magic words" are required to classify a dismissal as a § 1915(g) strike. Daker v. Commissioner, Georgia Dept. of Corrs., 820 F.3d 1278, 1284 (11th Cir. 2016) (citing Rivera v. Allin, 144 F.3d 719, 731 (11th Cir. 1998), abrogated in part on other grounds by Jones v. Bock, 549 U.S. 199 (2007)). But, since the dispositions of Jackson's other cases are explicit in finding them frivolous, he has more than three § 1915(g) strikes regardless. Despite the appearance, therefore, that this case too was dismissed for frivolity or failure to state a claim, no additional analysis is necessary.

Jackson's failure to disclose his previous cases, by the way, is not benign. This Court does not hesitate to invoke dismissal and other sanctions against inmates who lie to or otherwise deceive this Court. See, e.g., Ross v. Fogam, 2011 WL 2516221 at * 2 (S.D. Ga. June 23, 2011); Johnson v. Chisolm, 2011 WL 3319872 at * 1 n. 3 (S.D. Ga. Aug.l, 2011), cited in Brinson v. Townsend, 2015 WL 2378940 at * 2 n. 4 (S.D. Ga. May 15, 2015). As explained in Ross:

Rule 11(b) of the Federal Rules of Civil Procedure "forbids lying in pleadings, motions, and other papers filed with the court." Zocaras v. Castro, 465 F.3d 479, 484 (11th Cir. 2006). "Rule 11(c) provides for sanctions concerning misrepresentations made in papers filed with the court under Rule 11(b)." Id. at 490; see also 5A CHARLES Alan WRIGHT & Arthur R. Miller, Federal Practice and Procedure ยง 1335 (3d ed. 2004) (noting that courts have deemed sanctions appropriate to punish various forms of party misconduct). Rule 41(b) "expressly authorizes the involuntary dismissal of a claim for plaintiffs failure to abide by . . . the Federal ...

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