United States District Court, M.D. Georgia, Macon Division
T. TREADWELL, JUDGE UNITED STATES DISTRICT COURT
se Plaintiff Ronald Earle Rushin, currently incarcerated in
Wilcox State Prison, submitted a pro se petition for
writ of mandamus on what appears to be a standard form for
use in the Superior Courts of Georgia. Petitioner requests
that this Court order prison officials to “ship
Petitioner away from here to prevent injury.” ECF No. 1
at 2. Petitioner, however, failed to pay the Court's
filing fee or submit a properly completed motion to proceed
in forma pauperis. Consequently, on August 28, 2017,
the Clerk of Court issued a notice of deficiency affording
Petitioner twenty-one (21) to either remit payment to the
Court or submit a motion to proceed without the prepayment of
the filing fee. The clerk included a copy of the Court's
standard application to proceed IFP and advised Petitioner
that failure to comply could result in the dismissal of this
action. The deadline has now passed without compliance or
response from Petitioner. Petitioner's failure to comply
or submit an application to proceed in forma pauperis is a
sufficient basis for dismissal of this action. See e.g.
Castro v. Director, F.D.I.C., 449 F. App'x 786 (11th
review of the petition, however, it is apparent that
Petitioner may not proceed IFP in this action even if he
filed an appropriate motion. Petitioner 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). Petitioner is thus DENIED
in forma pauperis status. His Petition is
DISMISSED WITHOUT PREJUDICE for this reason
and for Petitioner's failure to state a claim upon which
relief may be granted.
Three strikes under 28 U.S.C. § 1915(g)
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 dozens of federal
lawsuits and least three complaints were dismissed as
frivolous, malicious, or for failure to state a claim.
See Rushin v. Freeman, 1:05-cv-01699, ECF No. 2
(N.D.Ga. Aug. 16, 2005) (dismissed for failure to state a
claim); Ash v. Adamson, 4:10-cv-00055-CDL, ECF No.
12 (M.D. Ga. June 30, 2010) (dismissed for failure to state a
claim); Rushin v. Obriens, 1:10-cv-02106, ECF No. 2
(N.D.Ga. Jul 29, 2010) (dismissed as frivolous).
of this, Petitioner 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. 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 v. Johnson, 387 F.3d 1344, 1350 (11th
Cir. 2004)). When reviewing a pro se prisoner's 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. Brown v.
Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004);
Tannenbaum v. United States, 148 F.3d 1262, 1263
(11th Cir. 1998). Petitioner's complaint simply states
that he wishes to be transferred, presumably to another
prison, “to prevent injury.” Petitioner's
vague, non-specific allegations are not sufficient to meet
the imminent danger standard.
Petitioner has three prior dismissals that properly qualify
as strikes under 28 U.S.C. § 1915(g), he cannot proceed
in forma pauperis in this action 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).
Accordingly, Plaintiff's complaint is subject to
dismissal. Id. (the proper procedure is to dismiss
the complaint without prejudice).
Failure to state a claim
Petitioner was able to proceed in this action in forma
pauperis, his petition for writ of mandamus is still
subject to sua sponte dismissal as frivolous. Although
Petitioner has provided few details, it is apparent from the
face of his filing that he seeks to have this Court order
state officials to “act pursuant to their legal
duty.” ECF No. 1 at 1. The United States District
Courts, however, are unable to issue writs compelling action
by state officials in the performance of their duties.
See Lawrence v. Miami-Dade Cty. State Attorney
Office, 272 Fed.Appx. 781, 781 (11th Cir. 2008)
(“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.”); In re Gurley, 247 F. App'x
437 (4th Cir. 2007) (dismissing writ of mandamus for lack of
jurisdiction because sought only to compel actions of state
Petitioner seeks an order compelling state officials in the
performance of their duties, this Court is without
jurisdiction to grant Petitioner the relief he seeks.