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Ballou v. Meadows Regional Medical Center

United States District Court, S.D. Georgia, Statesboro Division

October 10, 2017

CURTIS RAY BALLOU, Plaintiff,
v.
MEADOWS REGIONAL MEDICAL CENTER, Defendant.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER UNITED STATES MAGISTRATE JUDGE.

         Plaintiff has submitted a Complaint brought pursuant to 42 U.S.C. § 1983. (Doc. 1.) Concurrent with his Complaint, Plaintiff filed a Motion to proceed in forma pauperis. (Doc. 2.) For the numerous reasons set forth below, the Court DENIES Plaintiff's Motion to proceed in forma pauperis, and I recommend that the Court DISMISS this action, DENY Plaintiff leave to appeal in forma pauperis, and DIRECT the Clerk of Court to enter the appropriate judgment of dismissal and CLOSE this case.

         PLAINTIFF'S ALLEGATIONS

         Plaintiff, an inmate at Augusta State Medical Prison in Grovetown, Georgia, filed this action on August 9, 2017. (Doc. 1.) Plaintiff names Meadows Regional Medical Center (“Meadows Regional”) as the sole Defendant in this case. He contends that in July of 2015, while in the custody of the Georgia Department of Corrections, he was admitted to Meadows Regional for stomach surgery. (Id. at p. 5.) He contends that the “the surgery team” left a syringe cap in his stomach. Id. He states that this object caused him to suffer severe pain for several days and that the cap was eventually identified on a radiology report by other physicians. Id. Though Plaintiff's Complaint is not clear, it appears that he was returned to Meadows Regional and the hospital was “forced to repete [sic] surgery.” (Id. at p. 4.)

         STANDARD OF REVIEW

         Plaintiff seeks to bring this action in forma pauperis under 42 U.S.C. § 1983. 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).

         When 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. 2001)).

         Whether 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 Fed.Appx. 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)).

         In its 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 without counsel.”). The requisite review of Plaintiff's Complaint raises several doctrines of law which require the dismissal of the Complaint.

         DISCUSSION

         I. Dismissal Under Section 1915(g)

         A. Plaintiff has Three Strikes

         As explained above, a prisoner proceeding in a civil action against officers or employees of government entities must comply with the mandates of the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915. 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.

28 U.S.C. § 1915(g). Furthermore, 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 Court of Appeals for the Eleventh Circuit has held to be a “strike-worthy” form of dismissal under § 1915(g). See Rivera v. Allin, 144 F.3d 719, 723 (11th Cir. 1998), abrogated on other grounds by Jones v. Bock, 549 U.S. 199, 214, (2007); Malautea v. SuzukiMotor Co., 987 F.2d 1536, 1544 (11th Cir. 1993) (characterizing failure to comply with court orders as “abuse of the judicial process”). In Rivera, the Eleventh Circuit explained that “[a] claim that fails to allege the requisite exhaustion of remedies is tantamount to one that fails to state a claim upon which relief may be granted.” 144 F.3d at 731. Therefore, this Court and others frequently find that a dismissal for failure to exhaust administrative remedies counts as a “strike” under Section 1915(g). See, e.g., Gibbs v. Georgia ...


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