United States District Court, N.D. Georgia, Atlanta Division
CIVIL RIGHTS 28 U.S.C. § 1331
UNITED STATES MAGISTRATE JUDGE'S FINAL REPORT AND
F. KING UNITED STATES MAGISTRATE JUDGE
Brandon Che Lee, Federal Bureau of Prisons identification
number 45296-112, confined in the United States Penitentiary
in Atlanta, Georgia, has submitted a complaint - along with
four later filed complaints which have been consolidated into
this action by separate order. The Clerk of Court is
DIRECTED to adjust the docket to show that
this is a civil rights action under 28 U.S.C. § 1331 as
Plaintiff is a federal prisoner. The matter is before the
Court on Plaintiff's complaint, (Compl., ECF No. 1), and
consolidated supplemental complaints, (Suppl. Compls. 3932,
4074, 4148, and 4320, ECF Nos. 2-5), in which Plaintiff
complains about matters related to his confinement.
currently is serving a 240-month term of imprisonment based
on his convictions for mail fraud and identification-document
crimes. United States v. Lee, No. 8:07-cr-0207-AG-1
(C.D. Cal. June 3, 2010). Plaintiff is a prolific filer who
generally complains about matters such as electronic shocks
while his blood pressure is being taken, difficulty
contacting family members and the effect that his conviction
has had on his relationship with his family members, the
provision of poisonous food items from various sources and at
numerous times, and fellow prisoners fumbling their penises
in numerous locations and at virtually all times of the day.
See generally Final R. & R., Lee v.
Warden, No. 1:16-cv-4401-ODE (N.D.Ga. Feb. 7, 2017);
Final R. & R., Lee v. Warden, No.
1:16-cv-4009-ODE (N.D.Ga. Dec. 30, 2016); Final R. & R.,
Lee v. Jeong, No. 1:16-cv-3935-ODE (N.D.Ga. Dec. 19,
2016); Final R. & R., Lee v. Unnamed Defendant,
No. 1:16-cv-3279-ODE (N.D.Ga. Nov. 15, 2016).
current allegations are similar to the allegations that he
has made in his numerous prior actions. (See Compl.
and Suppl. Compls. 3932, 4074, 4148, and 4320). Plaintiff
also periodically asserts that he has been exposed to
cigarette smoke. (Compl. at 2, 3; Suppl. Compl. 3932 at
5-6; Suppl. Compl. 4074 at 1-3, 5-6; Suppl. Compl. 4148 at
1-5; Suppl. Compl. 4320 at 1-4, 6). Plaintiff further states
that a staff member has rubbed his body, generally at a unit
door and allegedly in order to sexually harass Plaintiff.
(Compl. at 5; Suppl. Compl. 3932 at 1, 6; Suppl. Compl. 4148
§ 1915(g) of Title 28 does not allow a prisoner to bring
an in forma pauperis civil action in federal court
“if the prisoner has, on 3 or more prior occasions,
while incarcerated . . ., 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.”
See Gresham v. Jenkins, No. 2:15-CV-11640, 2015 WL
3403942, at *3-4 (E.D. Mich. May 26, 2015) (finding that
sexual abuse allegations - by prisoner who had a history of
filing numerous delusional claims - were unsupported and
failed to show that the prisoner was in imminent danger);
Bozeman v. Miles, No. 2:07-CV-182-MHT, 2007 WL
1034953, at *1 (M.D. Ala. Mar. 30, 2007) (finding that
allegations of sexual harassment did not show that the
prisoner was under imminent danger of serious physical
injury). When § 1915(g) does not allow a prisoner to
proceed in forma pauperis, the complaint should be
dismissed without prejudice, and, a prisoner wishing to
pursue his or her claims, must refile the action with full
payment of the filing fee. See Dupree v. Palmer, 284
F.3d 1234, 1236 (11th Cir. 2002).
while incarcerated, has filed at least three civil actions
that have been dismissed as frivolous, malicious, or for
failure to state a claim. See Order, Lee v.
Feather, No. 3:16-cv-1536-HZ (D. Or. Sep. 22, 2016)
(listing three district court dismissals); see also Lee
v. Maye, Appeal No. 14-3214 (10th Cir. Jan. 7, 2015)
(dismissing appeal as frivolous). The Court finds that
Plaintiff's pleadings are on the whole frivolous.
Further, Plaintiff's allegations of periodic exposure to
cigarette smoke and his unexplained allegation that his lungs
are very bad do not rise to the level of showing that he is
in imminent danger of serious physical injury. See Foster
v. Unidentified Party, 34 F. App'x 963, 2002 WL
663757, at *1 (5th Cir. 2002) (rejecting claim that exposure
to second-hand smoke presented an imminent danger of serious
physical injury); Gibbs v. Santos, No.
4:16-CV-12-DMB-JMV, 2016 WL 4919895, at *3 (N.D. Miss. Sept.
14, 2016) (rejecting claim that exposure to second-hand smoke
presented an imminent danger under § 1915(g) to prisoner
who was concerned about exposure when he had only one
kidney); Johnson v. Mercer, No. 4:13CV321-RH/CAS,
2013 WL 4549052, at *2 (N.D. Fla. Aug. 28, 2013) (finding
that danger from unwanted tobacco smoke does not qualify as
imminent danger whereas danger from “‘internal
bleeding, intestinal obstruction, gangrene, and death'
due to delayed hernia surgery” would qualify as
imminent danger (quoting Jackson v. Jackson, 456 F.
App'x 813, 814 n.* (11th Cir. Jan.31, 2012)); Wilson
v. Riley, No. 2:07-CV-891-WKW, 2007 WL 3120133, at *1
(M.D. Ala. Oct. 23, 2007) (“While second hand smoke can
cause health problems, these potential ailments are not
sufficiently imminent to allow Wilson an exception to the
frequent filer provision of 28 U.S.C.1915(g).”).
IS RECOMMENDED that Plaintiff be
DENIED in forma pauperis status and
that this action, as consolidated, be DISMISSED
WITHOUT PREJUDICE. Clerk is
DIRECTED to withdraw the references to the
IS SO RECOMMENDED and DIRECTED.
The four later filed complaints
originally were docketed as civil action numbers
1:17-cv-3932, 1:17-cv-4074, 1:17-cv-4148, and
Plaintiff states that he is
“always” inhaling smoke since he moved, (Suppl.
Compl. 3932 at 5), and elsewhere indicates that his exposure
is intermittent and located near a limited number of cells at
certain times, (see Compl. at 2-3; Suppl. Compl.
3932 at 5-6; Suppl. Compl. 4074 at 1-3, 5-6; Suppl. Compl.
4148 at 1-5; Suppl. Compl. 4320 at 1-4, 6), states that his
throat and lungs are very ...