United States District Court, M.D. Georgia, Macon Division
T. TREADWELL UNITED STATES DISTRICT COURT.
RONALD EARLE RUSHIN, an inmate in the Coffee
Correctional Facility in Nicholls, Georgia, has filed a
pro se petition for a federal writ of mandamus. ECF No.
1. Petitioner has also filed a motion for leave to proceed
without prepayment of the filing fee or security therefor
pursuant to 28 U.S.C. § 1915(a). ECF No. 2. For the
following reasons, the Court DENIES
Petitioner's motion to proceed in forma pauperis
and also concludes that Petitioner's petition for a writ
of mandamus must be DISMISSED.
Motion to Proceed in forma pauperis
law bars a prisoner from bringing a "civil
action" in federal court in forma
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. See
Medberry v. Butler, 185 F.3d 1189, 1192 (11th Cir.
1999). Once a prisoner incurs three strikes, his ability to
proceed in forma pauperis in federal court is
greatly limited: leave to proceed in forma
pauperis may not be granted unless the prisoner is
under 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 Petitioner has filed numerous federal
lawsuits and that at least three of his complaints or appeals
have been dismissed as frivolous, or malicious, or for
failure to state a claim. See, e.g., Order
Dismissing Compl., Rushin v. Obriens, ECF No. 3 in
Case No. 1:10-CV-02106-RLV (N.D.Ga. July 29, 2010)
(dismissing as frivolous); Order Dismissing Compl., Ash
(a/k/a Rushin) v. Adamson, ECF No. 12 in Case No.
4:10-CV-55-CDL-GMF (M.D. Ga. June 30, 2010) (adopting
recommendation of magistrate judge to dismiss as frivolous
and for failure to state a claim); Order Dismissing Compl.,
Rushin v. Freeman, ECF No. 2 in Case No.
1:05-CV-01699-RLV (N.D.Ga. Aug. 16, 2005) (dismissing for
failure to state a claim); see also Order Dismissing
Compl., Rushin v. Taylor, ECF No. 4 in Case No.
1:16-CV-00357-ELR (N.D.Ga. Mar. 30, 2016) (adopting
recommendation of magistrate judge to dismiss under 28 U.S.C.
§ 1915(g)). Petitioner is accordingly barred from
prosecuting this action in forma pauperis unless he
is in imminent danger of serious physical injury. 28 U.S.C.
qualify for this exception, a prisoner must allege specific
facts that describe an “ongoing serious physical
injury” or “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) (per curiam) (internal
quotation marks omitted). Complaints of past injuries are not
sufficient. See Medberry, 185 F.3d at 1193. Vague
and unsupported claims of possible dangers likewise do not
suffice. See White v. State of Colo., 157 F.3d 1226,
1231-32 (10th Cir. 1998). The exception to § 1915(g) is
to be applied 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).
case, Petitioner asserts that prison officials are
trafficking in methamphetamine, cocaine, marijuana,
cigarettes, and cell phones within the prison, and that, by
allowing inmate gang members access to drugs, cigarettes, and
cell phones, the officials are placing his life in harm's
way. Petitioner's allegations regarding the distribution
of drugs and other prohibited substances are too vague and
conclusory to permit the Court to conclude that the
“imminent danger” exception applies. See
White, 157 F.3d at 1231 (denying “imminent danger
of serious physical injury” exception because pleading
was “largely a collection of vague and utterly
conclusory assertions”). Petitioner's motion to
proceed in forma pauperis, ECF No. 2, is therefore
DENIED pursuant to § 1915(g).
Petitioner was permitted to proceed in forma
pauperis, his Petition is still subject to dismissal.
Because Petitioner is a prisoner “seeking redress from
a governmental entity or [an] officer or employee of a
governmental entity, ” the Court is required to conduct
a preliminary screening of his Complaint. See 28
U.S.C. § 1915A(a). When conducting a preliminary
screening under 28 U.S.C. § 1915A, the Court must accept
all factual allegations in the complaint as true. Boxer X
v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006). Pro
se pleadings, like the one in this case, are “held
to a less stringent standard than pleadings drafted by
attorneys and will, therefore, be liberally construed.
Id. (internal quotation marks omitted). Still, the
Court must dismiss a prisoner complaint if it “(1) is
frivolous, malicious, or fails to state a claim upon which
relief may be granted; or (2) seeks monetary relief from a
defendant who is immune from such relief.” 28 U.S.C.
is frivolous if it “lacks an arguable basis either in
law or in fact.” Miller v. Donald, 541 F.3d
1091, 1100 (11th Cir. 2008) (internal quotation marks
omitted). The Court may dismiss claims that are based on
“indisputably meritless legal” theories and
“claims whose factual contentions are clearly
baseless.” Id. (internal quotation marks
omitted). A complaint fails to state a claim if it does not
include “sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)).
Petition, Petitioner seeks an order requiring Respondents to
transfer him to a different prison and to fire various prison
officials for allowing Petitioner's life to be put in
danger. ECF No. 1 at 3. Even when liberally construed,
Petitioner's application does not seek relief available
from this Court. The United States District Courts do not
have the authority to issue writs compelling action by state
officials in the performance of their duties. See Moye v.
Clerk, DeKalb Cnty. Superior Court, 474 F.2d 1275, 1276
(5th Cir. 1973) (per curiam); see also Lawrence v.
Miami-Dade Cnty. State Attorney Office, 272 F. App'x
781, 781 (11th Cir. 2008) (per curiam) (“Because the
only relief [petitioner] sought was a writ of mandamus
compelling action from state officials, not federal
officials, the district court lacked jurisdiction to grant
relief and did not err in dismissing the petition.”)
Accordingly, this Petition is subject to dismissal pursuant
to 28 U.S.C. § 1915A(b).