United States District Court, S.D. Georgia, Statesboro Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE.
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.
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.)
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. §
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 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)).
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.
Dismissal Under Section 1915(g)
Plaintiff has Three Strikes
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 ...