United States District Court, M.D. Georgia, Macon Division
AMENDED ORDER OF DISMISSAL
T. TREADWELL, JUDGE UNITED STATES DISTRICT COURT
Ronald Earl Rushin, a detainee currently confined at the
Coffee County Correctional Facility in Nichols, Georgia, has
filed a pro se civil rights complaint in this Court
seeking relief under 42 U.S.C. § 1983. Plaintiff also
seeks leave to proceed in this action without prepayment of
the $350.00 filing fee. After a review of Plaintiff's
submissions, the Court finds that Plaintiff may not proceed
in forma pauperis, as three of his prior federal
lawsuits were dismissed for failure to state a claim and
count as “strikes” under 28 U.S.C. §
1915(g). His Motion to Proceed in forma pauperis is
accordingly DENIED, and his Complaint is DISMISSED without
Motion to Proceed in forma pauperis
has moved for leave to proceed without prepayment of the
filing fee. Federal law prohibits a prisoner from bringing a
civil action in federal court in forma pauperis
if [he] 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.
28 U.S.C. § 1915(g). This is known as the “three
strikes provision.” Under § 1915(g), a prisoner
incurs a “strike” any time he has a federal
lawsuit or appeal dismissed on the grounds that it is
frivolous or malicious or fails to state a claim.
Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir.
1999). If a prisoner incurs three strikes, his ability to
proceed in forma pauperis in federal court is greatly
limited: Leave may not be granted unless the prisoner alleges
an “imminent danger of serious physical injury.”
review of court records on the Federal Judiciary's Public
Access to Court Electronic Records (“PACER”)
database reveals that Plaintiff has filed dozens of lawsuits
in federal court and that at least three of his complaints
were dismissed for failure to state a claim. See Rushin
v. Obriens, No. 1:10-CV-2106-RLV, ECF No. 2 (N.D.Ga.
July 29, 2010) (dismissed as frivolous);
Ash v. Adamson, No. 4:10-CV-55-CDL,
ECF No. 12 (M.D. Ga. June 30, 2010) (dismissed as frivolous
and for failure to state a claim); and Rushin v.
Freeman, No. 1:05-CV-1699-RLV, ECF No. 2 (N.D.Ga. Aug.
16, 2005) (dismissed for failure to state a claim). Because
of this, Plaintiff may not proceed in forma pauperis unless
he can show that he qualifies for the “imminent
danger” exception in § 1915(g). See Medberry, 185
F.3d at 1193.
Court must, therefore, review the facts alleged in
Plaintiff's Complaint (and the attachments thereto), to
determine whether his claims warrant an exception to the
three strikes rule. When reviewing a pro se complaint for
this purpose, the district court must accept all factual
allegations in the complaint as true and view all allegations
of imminent danger in Plaintiff's favor. See Brown v.
Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004);
Tannenbaum v. United States, 148 F.3d 1262, 1263
(11th Cir. 1998).
case, Plaintiff attempts to satisfy the “imminent
danger” exception by alleging that prison officials are
trafficking illegal drugs and other contraband within Wilcox
State Prison, “placing [Plaintiff] in cells with drug
addicts, ” and “promoting violence through their
noncompliance with GDC rules.” These general
allegations are, however, not sufficient to support a finding
of imminent danger, as Plaintiff fails to allege specific
facts to show that there is a real (as opposed to potential)
and imminent threat to his physical safety. See Lewis v.
Sullivan, 279 F.3d 526, 531 (7th Cir. 2002) (exception
to §1915(g) is to be applied only in “genuine
emergencies, ” when “time is pressing, ”
and the threat is shown to be both “real and
proximate.”); White v. State of Colo., 157
F.3d 1226, 1231 (10th Cir. 1998) (vague and unsupported
claims of possible dangers are not sufficient to warrant
exception to § 1915(g)). What is more, the claims in
Plaintiff's Complaint are based on conditions and events
occurring at Wilcox State Prison. Plaintiff was transferred
to the Coffee County Correctional Facility shortly after he
filed this lawsuit and was thereby removed from any perceived
imminent threat of serious physical injury at Wilcox State
Prison. See Medberry, 185 F.3d at 1193.
these reasons, Plaintiff's Motion to proceed in forma
pauperis is DENIED. When the district court denies a prisoner
leave to proceed in forma pauperis pursuant to §
1915(g), the proper procedure is for the court to dismiss the
complaint without prejudice. Dupree v. Palmer, 284
F.3d 1234, 1236 (11th Cir. 2002). Plaintiff's Complaint
is, therefore, DISMISSED without prejudice to his right to
refile (within the relevant statute of limitations) with full
payment of the Court's filing fee.