United States District Court, S.D. Georgia, Statesboro Division
RANDAL HALL, CHIEF JUDGE UNITED STATES DISTRICT COURT.
before the Court are Plaintiffs Objections, (doc. 5), to the
Magistrate Judge's Report and Recommendation dated
February 14, 2017, (doc. 4). Plaintiff has also filed
pleadings labeled as a Motion to Amend/Correct Complaint,
(doc. 6), and an "Amended Complaint, " (doc. 7),
which the Court construes as additional Objections to the
Magistrate Judge's Report and
Recommendation. After an independent and de novo
review of the entire record, the undersigned
OVERRULES Plaintiffs Objections,
CONCURS with the Magistrate Judge's
Report and Recommendation, and ADOPTS the
Report and Recommendation as the opinion of the Court.
filed this cause of action pursuant to 42 U.S.C. § 1983
to contest certain conditions of his confinement at Georgia
State Prison in Reidsville, Georgia. (Doc. 1.) In his
Complaint, Plaintiff alleges he suffers from a number of
medical conditions that cause him chronic pain. (Id.
at pp. 11-12.) To manage his pain, Plaintiff must take pain
medication daily. "[P]rior [to] being transferred [to
Georgia State Prison, ] Plaintiff was incarcerated at Johnson
State Prison where he did not have any problems with his
pills." (Id. at p. 13.) During Plaintiffs
incarceration at Johnson State Prison, his pain medication
"was administered to him as directed by the label and
[was] ... 97 percent effective" to alleviate his pain.
(Id.) However, upon his arrival at Georgia State
Prison, Plaintiff received his medication in the form of a
white powder. (Id.) Plaintiff avers that Defendant
Sabine "adopted his own policy . . . concerning the
medication . . . [which required] Defendant Smith [to]
produce a white powder in a small plastic bag" instead
of the pills Plaintiff received at Johnson State Prison.
(Id.) Plaintiff maintains that Defendants expect
"prisoners to accept... the white powder in the small
plastic bag that nobody know[s] where it come from
[sic]." (Id.) On November 30, 2015, after
refusing to take pain medication in powder form, Plaintiff
requested that Defendant Sabine provide him pain pills.
(Id.) However, Plaintiff received no response to his
request or any pain pills. (Id.) Although Defendant
Smith continued to offer Plaintiff pain medication in powder
form, "Plaintiff refused to take [the] white
powder." (Id. at p. 15.) As a result,
Plaintiffs health condition has deteriorated. (Id.)
further avers that when he requested to be sent to Augusta
State Medical Prison for treatment, Defendant Tolbert became
angry and changed Plaintiffs Zantac prescription to Prilosec.
(Id. at p. 16.) In addition to Prilosec, Defendant
Tolbert also prescribed Plaintiff a 14-day regimen of Tylenol
3 to manage his pain. (Id.) However, at the
conclusion of that 14-day period, Defendant Tolbert and
Defendant Smith discontinued Plaintiffs Tylenol 3
prescription. (Id. at p. 17.) Plaintiff alleges he
now suffers from exacerbated pain, incapacitation,
depression, loss of sensation and paralysis, and higher blood
February 14, 2017, Magistrate Judge R. Stan Baker recommended
that the Court dismiss Plaintiffs Complaint, due to
Plaintiffs accumulation of three strikes under 28 U.S.C.
§ 1915(g). (Doc. 4, p. 8.) Additionally, the Magistrate
Judge denied Plaintiffs Motion to Proceed in Forma
Pauperis after concluding that Plaintiff did not
sufficiently allege he faced imminent danger of serious
physical harm. (Id.) Plaintiff filed Objections to
the Magistrate Judge's Report and Recommendation on March
2, 2017. (Doc. 5.) Plaintiff filed an identical pleading
labeled "Motion to Amend/Correct Complaint" on the
same date, (doc. 6), as well as a pleading labeled
"Amended Complaint" on March 15, 2017, in which he
reiterates his Objections to the Report and Recommendation.
Objections, Plaintiff contends the Magistrate Judge failed to
liberally construe his Complaint, as required by Haines
v. Kerner, 404 U.S. 519 (1972), and therefore,
improperly concluded that Plaintiff does not face an imminent
danger of harm. Plaintiff presents these same arguments in
his Motion to Amend and his "Amended Complaint",
(docs. 6, 7).
Magistrate Judge discussed in the Report and Recommendation,
a prisoner attempting to proceed in forma pauperis
in a civil action in federal court must comply with the
mandates of the Prison Litigation Reform Act
("PLRA"). Pertinently, 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.
Eleventh Circuit Court of Appeals has explained that
"[t]his provision of the PLRA, 'commonly known as
the 'three strikes' provision, ' requires
frequent filer prisoners to prepay the entire filing fee
before federal courts may consider their lawsuits and
appeals." Rivera v. Allin, 144 F.3d 719, 723
(11th Cir. 1998) (quoting Lyon v. Krol, 127 F.3d
763, 764 (8th Cir. 1997)). Dismissals for providing false
filing-history information and failing to comply with court
orders both fall under the category of "abuse of the
judicial process", which the Eleventh Circuit has held
to be a "strike-worthy" form of dismissal under
Section 1915(g). See id. at 731 (dismissal for
failure to disclose prior litigation is "precisely the
type of strike that Congress envisioned when drafting section
1915(g)"); Malautea v. Suzuki Motor Co., 987
F.2d 1536, 1544 (11th Cir. 1993) (characterizing failure to
comply with court orders as "abuse of the judicial
Eleventh Circuit has held that a prisoner barred from
proceeding in forma pauperis due to the "three
strikes" provision in § 1915(g) must pay the entire
filing fee when he initiates suit. Vanderberg v.
Donaldson, 259 F.3d 1321, 1324 (11th Cir. 2001).
Therefore, the proper procedure for a district court faced
with a prisoner who seeks in forma pauperis status
but is barred by the "three strikes" provision is
to dismiss the complaint without prejudice. Dupree v.
Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002).
review of Plaintiff s history of filings reveals that he has
brought more than three civil actions or appeals which count
as strikes under Section 1915(g): 1) Baez v.
Gearinger, No. 5:00-cv-00023 (M.D. Ga. Mar. 21, 2000),
ECF No. 4 (dismissing complaint as frivolous); 2) Baez v.
Doe, No. 5:99-cv-00353 (M.D. Ga. Nov. 4, 1999), ECF No.
5 (dismissing action as frivolous); 3) Baez v. Miller, et
al. l:06-cv-01738 (N.D.Ga. Sept. 20, 2007), ECF No. 36
(dismissing action as frivolous for failure to state a
claim); 4) Baez v. Lee, l:90-cv-01942 (N.D.Ga. Nov.
20, 1990), ECF No. 3 (dismissing complaint as frivolous); 5)
Baez v. Lee, l:94-cv-01347 (N.D.Ga. Dec. 6, 1995),
ECF No. 6 (same); 6) Baez v. Forrester,
l:98-cv-02126 (N.D.Ga. Nov. 6, 1998), ECF No. 8 (dismissal
for failure to follow court order); and 7) Baez v. Jackson,
et. al, 6:16-cv-5 (S.D. Ga. Apr. 18, 2016), ECF No. 8
(dismissal for failure to disclose litigation history and
failure to allege imminent danger of serious physical injury
concerning manner in which plaintiff is given pain
Plaintiff has filed at least three previously dismissed cases
or appeals which qualify as strikes under Section 1915(g),
Plaintiff may not proceed in forma pauperis in this
action unless he can demonstrate that he meets the
"imminent danger of serious physical injury"
exception to Section 1915(g). "In order to come within
the imminent danger exception, the Eleventh Circuit requires
'specific allegations of present imminent danger that may
result in serious physical harm.,, ,Odum v.
Bryan Ctv. Judicial Circuit, No. CV407-181, 2008 WL
766661, at *1 (S.D. Ga. Mar. 20, 2008) (quoting Skillern
v. Jackson, No. CV606-49, 2006 WL 1687752, at *2 (S.D.
Ga. June 14, 2006) (citing Brown v. Johnson, 387
F.3d 1344, 1349 (1 lth Cir. 2004))). General and conclusory
allegations not grounded in specific facts indicating that
injury is imminent cannot invoke the Section 1915(g)
exception. Margiotti v. Nichols, No. CV306-113, 2006
WL 1174350, at *2 (N.D. Fla. May 2, 2006). Moreover, a harm
that has already occurred or danger that has now passed
cannot justify skirting the three strike bar. Medberry v.
Butler,185 F.3d 1189, 1193 (11th Cir. 1999)
("prisoner's allegation that he faced imminent
danger sometime in the past is an insufficient basis to allow
him to proceed in forma pauperis pursuant to the
imminent danger exception to the statute."); see
also Abdul-Akbar v. McKelvie,239 F.3d 307, 315 (3d Cir.
2001) ("By using the term 'imminent, ' Congress
indicated that it wanted to include a safety valve for the
'three strikes' rule to prevent impending harms, ...