United States District Court, S.D. Georgia, Statesboro Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE
an inmate at Georgia State Prison in Reidsville, Georgia,
filed this action pursuant to 42 U.S.C. § 1983 and the
Religious Land Use Institutionalized Persons Act
(“RLUIPA”). For the reasons which follow, the
Court DENIES Plaintiff leave to proceed
in forma pauperis. Additionally, I
RECOMMEND that the Court
DISMISS Plaintiff's Complaint,
without prejudice and DENY
Plaintiff in forma pauperis status on
Complaint, Plaintiff levies a litany of claims against dozens
of Defendants regarding his confinement at Georgia State
Prison. (Doc. 1-1.) Plaintiff contends that all of these
Defendants maintain a policy limiting the length of a male
prisoner's facial hair. (Id. at p. 9.) He
contends that Georgia Department of Corrections written
policy provides that shaving clippers should be sanitized
after every use. Id. He maintains that sanitizing
the clippers prevents the spread of HIV, hepatitis, and other
infectious diseases. Id. However, Plaintiff
maintains, Defendants disregard this policy and use clippers
that have not been sanitized or that are broken.
(Id.at pp. 9-10.)
also levies allegations against Defendants Hutcheson and
Shuemake, who are correctional officers at Georgia State
Prison, regarding an incident that occurred on July 6, 2017.
(Id. at pp. 10-12.) Plaintiff claims that these
officers escorted him from his cell to the prison's
barbershop. Id. At the barbershop, Plaintiff refused
to have another inmate cut his hair and demanded that
Hutcheson and Shuemake allow him to cut his own hair.
Id. He told them that he needed to shave his own
hair so that he could insure that he was shaved in accordance
with his religious beliefs. Id. When Plaintiff
persisted in his refusal to allow another inmate to cut his
hair, the officers slammed him to the ground, forcibly
restrained him, and shaved him with clippers that had not
been sanitized. Id. He contends that the officers
then placed him on strip cell status and stripped him down to
his undergarments in front of female staff members, in
contradiction of Plaintiff's religious beliefs.
Id. Plaintiff also makes allegations regarding the
confiscation of his personal property following this incident
as well as claims that his due process rights were violated
at a July 28, 2017 disciplinary hearing. (Id. at pp.
contends that the use of excessive force to shave him as well
as cutting his hair with unsanitary clippers violates his
Eighth Amendment rights. (Id. at p. 13.) He also
maintains that Defendants violated his rights to religious
exercise guaranteed by the First Amendment to the United
States Constitution and RLUIPA by stripping him to his
underwear in front of females and by confiscating his
property. Id. Further, he makes claims of due
process violations attendant to the confiscation of his
property and his disciplinary hearing. Id.
brought this action in forma pauperis under 42
U.S.C. § 1983. (Doc. 2.) Under 28 U.S.C. §
1915(a)(1), the Court may authorize the filing of a civil
lawsuit without the prepayment of fees if the plaintiff
submits an affidavit that includes a statement of all of his
assets and shows an inability to pay the filing fee and also
includes a statement of the nature of the action which shows
that he is entitled to redress. Even if the plaintiff proves
indigence, the Court must dismiss the action if it is
frivolous or malicious, or fails to state a claim upon which
relief may be granted. 28 U.S.C. §§
1915(e)(2)(B)(i)-(ii). Additionally, pursuant to 28 U.S.C.
§ 1915A, the Court must review a complaint in which a
prisoner seeks redress from a governmental entity. Upon such
screening, the Court must dismiss a complaint, or any portion
thereof, that is frivolous or malicious, or fails to state a
claim upon which relief may be granted, or which seeks
monetary relief from a defendant who is immune from such
relief. 28 U.S.C. § 1915A(b).
reviewing a Complaint on an application to proceed in
forma pauperis, the Court is guided by the instructions
for pleading contained in the Federal Rules of Civil
Procedure. See Fed. R. Civ. P. 8 (“A pleading
that states a claim for relief must contain [among other
things] . . . a short and plain statement of the claim
showing that the pleader is entitled to relief.”);
Fed.R.Civ.P. 10 (requiring that claims be set forth in
numbered paragraphs, each limited to a single set of
circumstances). Further, a claim is frivolous under Section
1915(e)(2)(B)(i) “if it is ‘without arguable
merit either in law or fact.'” Napier v.
Preslicka, 314 F.3d 528, 531 (11th Cir. 2002) (quoting
Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir.
a complaint fails to state a claim under Section
1915(e)(2)(B)(ii) is governed by the same standard applicable
to motions to dismiss under Federal Rule of Civil Procedure
12(b)(6). Thompson v. Rundle, 393 F. App'x 675,
678 (11th Cir. 2010). Under that standard, this Court must
determine whether the complaint contains “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)). A plaintiff must assert “more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not” suffice. Twombly,
550 U.S. at 555. Section 1915 also “accords judges not
only the authority to dismiss a claim based on an
indisputably meritless legal theory, but also the unusual
power to pierce the veil of the complaint's factual
allegations and dismiss those claims whose factual
contentions are clearly baseless.” Bilal, 251
F.3d at 1349 (quoting Neitzke v. Williams, 490 U.S.
319, 327 (1989)).
analysis, the Court will abide by the long-standing principle
that the pleadings of unrepresented parties are held to a
less stringent standard than those drafted by attorneys and,
therefore, must be liberally construed. Haines v.
Kerner, 404 U.S. 519, 520 (1972); Boxer X v.
Harris, 437 F.3d 1107, 1110 (11th Cir. 2006)
(“Pro se pleadings are held to a less
stringent standard than pleadings drafted by
attorneys.”) (emphasis omitted) (quoting Hughes v.
Lott, 350 F.3d 1157, 1160 (11th Cir. 2003)). However,
Plaintiff's unrepresented status will not excuse mistakes
regarding procedural rules. McNeil v. United States,
508 U.S. 106, 113 (1993) (“We have never suggested that
procedural rules in ordinary civil litigation should be
interpreted so as to excuse mistakes by those who proceed
Three Strikes Dismissal Under Section 1915(g)
prisoner, such as Plaintiff, 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 (dismissing
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 process”).
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).
Daker v. Commissioner, Georgia Department of
Corrections, 820 F.3d 1278 (11th Cir. 2016), the
Eleventh Circuit had occasion to consider whether Plaintiff
was a three-striker within the meaning of Section 1915(g)
based on six (6) of Plaintiff's previous filings that the
Middle District of Georgia cited as being
“strikes”. The cases the Middle District of
Georgia counted as strikes were: (1) Daker v. Head,
No. 01-14624 (11th Cir. Jan. 25, 2002) (an interlocutory
appeal from a civil lawsuit the Eleventh Circuit dismissed
for lack of jurisdiction); (2) Aziyz v. Tremble, No.
05-11696 (11th Cir. May 9, 2005) (same); (3) Daker v.
Barrett, No. 03-15771 (11th Cir. July 26, 2004)
(Eleventh Circuit dismissed an appeal from a civil lawsuit
“for want of prosecution because [Daker] has failed to
file [an] appellant brief within the time fixed by the
rules”); (4) In re Daker, No. 12-12073 (11th
Cir. July 12, 2012) (dismissal of a petition for a writ of
mandamus “for want of prosecution” under Eleventh
Circuit Rule 42-1(b) “because . . . Daker failed to pay
the $450 docket fee . . . within the time fixed by the
rules”); (5) In re Daker, No. 12-12072 (11th
Cir. Aug. 6, 2012) (same); and (6) Georgia v. Daker,
No. 12-12519 (11th Cir. Nov. 5, 2012) (same). The Eleventh
Circuit noted that, in the last three dismissals listed, only
“a single judge of this Court denied Daker's
petitions to proceed in forma pauperis because his
filings were ‘frivolous.'” Daker,
820 F.3d at 1282. The Eleventh Circuit determined that the
three appeals, which were dismissed for lack of prosecution,
could not count as strikes because Daker's applications
to proceed in forma pauperis on appeal were denied
by only one judge on the panel as being frivolous.
Id. at 1284-85. The Eleventh Circuit reasoned that
the text of Section 1915(g) mandates that the reason for the
dismissal of a cause of action or an appeal-as opposed to a
denial of an application to proceed in forma
pauperis-had to be because the cause of action or appeal
was frivolous, malicious, or failed to state a claim.
Id. at 1285. In addition, the Eleventh Circuit
stated that a dismissal for lack of jurisdiction was likewise
not a determination on the merits of a litigant's cause
of action or appeal. Id. at 1284.
the Eleventh Circuit concluded that the six (6) cases the
Middle District of Georgia used to label Plaintiff a
three-striker did not constitute strikes under the language
of Section 1915(g). However, the Eleventh Circuit made clear
that it “express[ed] no view on whether Daker has any
other strikes . . . [or] as to whether one or more of the six
dismissals might have failed to qualified as strikes for
other reasons.” Daker, 820 F.3d at 1286.
Therefore, the Eleventh Circuit did not determine that
Plaintiff is not a three-striker. Rather, it only determined
that the six (6) particular cases the Middle District of
Georgia used did not constitute strikes for the reasons the
district court found.
Plaintiff's history of filings reveals that he indeed has
brought more than three civil actions or appeals which count
as strikes under Section 1915(g). In reaching this
conclusion, this Court has not utilized the same six (6)
cases the Middle District of Georgia counted as strikes.
Instead, at least the following cases, which do not include
any of the cases the Eleventh Circuit found are not strikes,
constitute strikes under Section 1915(g): (1) Daker v.
Warren, No. 13-11630-B (11th Cir. Mar. 4, 2014) (appeal
dismissed after finding it frivolous); (2) Compl., Daker
v. Mokwa, 2:14cv395-UA-MRW (C.D. Cal. Feb. 4, 2014), ECF
No. 2 (dismissed as being frivolous, malicious, or failing to
state a claim); (3) Daker v. Robinson,
1:12-cv-00118-RWS (N.D.Ga. Sept. 12, 2013) (complaint
dismissed based on Plaintiff's failure to follow a court
order); and (4) Daker v. Dawes, 1:12-cv-00119-RWS
(N.D.Ga. Sept. 12, 2013) (same). The causes of action and
appeals this Court ...