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Brown v. Georgia State Board of Pardons & Paroles

United States District Court, M.D. Georgia, Macon Division

October 4, 2017

KURTIS LEE BROWN, Plaintiff,
v.
GEORGIA STATE BOARD OF PARDONS & PAROLES, et al., Defendants.

          ORDER

          MARC T. TREADWELL, JUDGE UNITED STATES DISTRICT COURT

         Plaintiff Kurtis Lee Brown, a prisoner who is presently incarcerated at the Autry State Prison in Pelham, Georgia, filed a pro se complaint seeking relief pursuant 42 U.S.C. § 1983. Plaintiff also seeks leave to proceed in forma pauperis. As discussed below, Plaintiff has three strikes under the Prison Litigation Reform Act, so he may not proceed in forma pauperis. The Court therefore DENIES Plaintiff's motions for leave to proceed in forma pauperis (ECF Nos. 2, 9), and this action is DISMISSED without prejudice. Plaintiff's remaining pending motions (ECF Nos. 6, 8, 10) are DENIED as moot.

         ANALYSIS

         Federal law bars 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 (1) frivolous, (2) malicious, or (3) fails to state a claim. See Medberry v. Butler, 185 F.3d 1189, 1192 (11th Cir. 1999); see also Daker v. Comm'r, Ga. Dep't of Corr., 820 F.3d 1278, 1283-84 (11th Cir. 2016) (confirming that “these three grounds are the only grounds that can render a dismissal a strike”). 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. Medberry, 185 F.3d at 1192.

         A review of court records on the Federal Judiciary's Public Access to Court Electronic Records (“PACER”) database reveals that Plaintiff has filed multiple federal lawsuits and that at least three of his complaints or appeals have been dismissed as frivolous, malicious, or for failure to state a claim. See, e.g., Order Dismissing Compl., Brown v. Howerton, ECF No. 8 in Case No. 1:11-CV-4080-RWS (N.D.Ga. Feb. 9, 2012) (dismissing for failure to state a claim); Order Dismissing Compl., Brown v. Thomas, ECF No. 14 in Case No. 4:07-CV-0124-WTM-GRS (S.D. Ga. Dec. 8, 2008) (adopting recommendation of dismissal for abuse of the judicial process which specifically indicated that the case should count as a strike for purposes of § 1915(g));[1] Order Dismissing Compl., Brown v. McConnell, ECF No. 9 in Case No. 4:09-CV-0086-WTM-GRS (S.D. Ga. July 27, 2009) (adopting recommendation of dismissal where claims were Heck-barred and therefore failed to state a claim); see also Order Dismissing Compl., Brown v. Ga. Dep't of Corr., ECF No. 6 in Case No. 1:12-cv-03353-RWS (N.D.Ga. Oct. 31, 2012) (adopting recommendation of dismissal based on § 1915(g)).[2] Plaintiff is accordingly barred from prosecuting this action in forma pauperis unless he is in imminent danger of serious physical injury. 28 U.S.C. § 1915(g).

         To 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 (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).

         In this case, Plaintiff is claiming that Defendants “retroactively increased his mandatory time of incarration [sic]” by nearly forty months and have refused to consider him for parole. Compl. 5, ECF No. 1. Plaintiff alleges this increase in the length of his sentence “is clear[ly] prohibited by ex post facto prohibitions” in the United States Constitution, and Plaintiff seeks compensatory damages as a result. Id. at 5-6. These allegations in no way suggest that Plaintiff is presently in imminent danger. As such, Plaintiff will not be permitted to proceed in forma pauperis pursuant to § 1915(g), and his Complaint should be dismissed without prejudice to his right to refile with pre-payment of the full $400 filing fee. See Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (per curiam) (“[T]he proper procedure is for the district court to dismiss the complaint without prejudice when it denies the prisoner leave to proceed in forma pauperis pursuant to the three strikes provision of § 1915(g).”).

         CONCLUSION

         For the foregoing reasons, Plaintiff's motions to proceed in forma pauperis in this action (ECF Nos. 2, 9) are DENIED and this action is DISMISSED WITHOUT PREJUDICE. If Plaintiff wishes to bring a new civil rights action, he may do so by submitting a new complaint form and the full filing fee. Plaintiff's remaining pending motions (ECF Nos. 6, 8, 10) are DENIED as moot.

         SO ORDERED.

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