United States District Court, M.D. Georgia, Macon Division
T. TREADWELL, JUDGE
se Plaintiff Terry L Barber, currently incarcerated in
Calhoun State Prison, submitted a pro se complaint
under 42 U.S.C. § 1983 complaining of injuries sustained
while he was confined in Wilcox State Prison. Plaintiff seeks
to proceed in this action without prepaying the $400.00
filing fee and has filed an amended complaint clarifying the
relief he seeks. Plaintiff's motion for leave to amend
(ECF No. 5) is GRANTED.
Court has now reviewed the complaint, amended complaint, and
all other submissions and finds that Plaintiff may not
proceed in this action without first prepaying the full
$400.00 filing fee, as at least three of his prior federal
lawsuits were dismissed as frivolous, malicious, or for
failure to state a claim and count as “strikes”
under 28 U.S.C. § 1915(g). Plaintiff's motion to
proceed in forma pauperis is DENIED, and this action
is DISMISSED without prejudice.
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 and leave may not be granted unless the
prisoner shows an “imminent danger of serious physical
review of court records on the Federal Judiciary's Public
Access to Court Electronic Records (“PACER”)
database reveals that Plaintiff has filed at least three
complaints that were dismissed as frivolous, malicious, or
for failure to state a claim. See Barber v.
Gunderson, 2:98-cv-00242 (S.D. Ga. Dec. 18, 1998)
(dismissed for failure to state a claim); Barber v.
Morgan, 2:98-cv-00246 (S.D. Ga. Dec. 23, 1998)
(dismissed for failure to state a claim); Barber v.
Coastal State Prison, 4:98-cv-00215 (S.D. Ga. Sept 17,
1998) (dismissed for failure to exhaust administrative
of this, Plaintiff may not proceed in forma pauperis
unless he can show that he qualifies for the “imminent
danger” exception in § 1915(g). Medberry,
185 F.3d at 1193. The Court is therefore now required to
review the facts alleged in Plaintiff's complaint to
determine whether an imminent danger exists and warrants 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 the plaintiff's favor.
Brown v. Johnson, 387 F.3d 1344, 1347 (11th Cir.
2004); Tannenbaum v. United States, 148 F.3d 1262,
1263 (11th Cir. 1998).
imminent danger exception applies only in “genuine
emergencies” when (1) “time is pressing, ”
(2) the “threat or prison condition is real and
proximate, ” and (3) the “potential consequence
is serious physical injury.” Lewis v.
Sullivan, 279 F.3d 526, 531 (7th Cir. 2002). Thus, to
satisfy this provision, a prisoner must allege specific facts
that describe “an ongoing serious physical injury, or
of a pattern of misconduct evidencing the likelihood of
imminent serious physical injury.” Sutton v. Dist.
Attorney's Office, 334 F. App'x 278, 279 (11th
Cir. 2009) (quoting Brown, 387 F.3d at 1350). Vague,
factually unsupported, and general allegations do not
suffice, nor do allegations of past injuries. See Martin
v. Shelton, 319 F.3d 1048, 1050 (8th Cir.
2003). The imminent danger must in fact exist at the time of
filing. Medberry, 185 F.3d at 1193.
alleges that he was sexually assaulted in 2016 while confined
at Wilcox State Prison. ECF No. 1 at 5. The assault led to
Plaintiff's involvement in a fight later that same day.
The substance of Plaintiff's complaint, however,
primarily focuses on his placement in administrative
segregation pending an investigation of the sexual assault or
fight. Id. Plaintiff also initially sought to return
to general population and complains only of Warden Caldwell
and Lieutenant Alfonzo's “fail[ure] to follow state
and federal procedures” related to the investigation of
the fight. Id. Plaintiff's pleadings indicate
that he suffered a violent attack, but they do not indicate
that such an attack is likely to recur or that there is a
continuing threat. Plaintiff's underlying claim thus does
not indicate that he faced an ongoing threat to his physical
safety at the time he filed his complaint. Plaintiff has
alleged no other facts concerning a threat of physical
injury. Accordingly, Plaintiff has not shown that he
qualifies under the imminent danger exception to 1915(g).
Plaintiff has three prior dismissals that properly qualify as
strikes under 28 U.S.C. § 1915(g), his motion for leave
to proceed in forma pauperis DENIED. Once a
plaintiff is denied in forma pauperis status, he
cannot simply pay the filing fee and proceed with his
complaint. Dupree v. Palmer, 284 F.3d 1234, 1236
(11th Cir. 2002).
Plaintiff's complaint is DISMISSED without prejudice.
Id. (the proper procedure is to dismiss the
complaint without prejudice). The clerk is ...