United States District Court, M.D. Georgia, Macon Division
T. TREADWELL, JUDGE.
Ronald Earle Rushin, an inmate in the Augusta State Medical
Prison in Grovetown, Georgia, has filed a pro se
petition for a federal writ of mandamus. Mot. for Writ of
Mandamus, ECF No. 1. Petitioner has not, however, paid the
Court's filing fee or moved for leave to proceed in
forma pauperis. In this case, the Court will assume that
Petitioner wishes to proceed without prepayment of the filing
fee or security therefor pursuant to 28 U.S.C. §
following reasons, the Court DENIES
Petitioner leave to proceed in forma pauperis and
also concludes that Petitioner's petition for a writ of
mandamus must be DISMISSED
Motion to Proceed in forma pauperis
law bars a prisoner from bringing a "civil
action" in federal court in forma
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 frivolous or
malicious or fails to state a claim. See Medberry v.
Butler, 185 F.3d 1189, 1192 (11th Cir. 1999). 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. Id.
review of court records on the Federal Judiciary's Public
Access to Court Electronic Records ("PACER")
database reveals that Petitioner has filed numerous federal
lawsuits and that at least three of his complaints or appeals
have been dismissed as frivolous or malicious or for failure
to state a claim. See, e.g., Order Dismissing
Compl., Rushin v. Obriens, Case No.
1:10-CV-02106-RLV (N.D.Ga. July 29, 2010), ECF No. 3
(dismissing as frivolous); Order Dismissing Compl., Ash
(a/k/a Rushin) v. Adamson, Case No. 4:10-CV-55-CDL-GMF
(M.D. Ga. June 30, 2010), ECF No. 12 (adopting recommendation
of magistrate judge to dismiss as frivolous and for failure
to state a claim); Order Dismissing Compl., Rushin v.
Freeman, Case No. 1:05-CV-01699-RLV (N.D.Ga. Aug. 16,
2005), ECF No. 2 (dismissing for failure to state a claim);
see also Order Dismissing Compl., Rushin v.
Taylor, Case No. 1:16-CV-00357-ELR (N.D.Ga. Mar. 30,
2016), ECF No. 4 (adopting recommendation of magistrate judge
to dismiss under 28 U.S.C. § 1915(g)). Petitioner 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).
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 Fed.Appx.
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,
1231-32 (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).
case, Petitioner asserts that he is being held hostage in the
Augusta Medical Prison insofar as he is currently
incarcerated there even though he has no physical or mental
disability. Mot. for Writ of Mandamus 2, ECF No. 1.
Petitioner also asserts that he is housed with "drug
dealing gang members" and that nurses in the infirmary
are trafficking in drugs and cell phones. Id.
Additionally, Petitioner contends that, in the absence of
mandamus relief, he may be killed. Id. at 2-3. Thus,
he requests an order requiring that he be transferred to a
different facility. Id. at 3.
allegations regarding being held in Augusta Medical Prison
even though he has no disability do not indicate that
Petitioner is in any danger of physical harm. Moreover, to
the extent that he contends that he fears he may be killed
because of being housed in a facility where there are gang
members or individuals who are trafficking in drugs and cell
phones, his allegations are too vague and conclusory to
permit the Court to conclude that the "imminent
danger" exception applies. See White, 157 F.3d
at 1231 (denying "imminent danger of serious physical
injury" exception because pleading was "largely a
collection of vague and utterly conclusory assertions").
Petitioner is therefore DENIED leave to proceed in forma
Petitioner was permitted to proceed in forma
pauperis, his Petition would still be subject to
dismissal. Because Petitioner is a prisoner "seeking
redress from a governmental entity or [an] officer or
employee of a governmental entity, " the Court is
required to conduct a preliminary screening of his Complaint.
See 28 U.S.C. § 1915A(a). When conducting a
preliminary screening under 28 U.S.C. § 1915A, the Court
must accept all factual allegations in the complaint as true.
Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir.
2006). Pro se pleadings, like the one in this case,
are "held to a less stringent standard than pleadings
drafted by attorneys and will, therefore, be liberally
construed. Id. (internal quotation marks omitted).
Still, the Court must dismiss a prisoner complaint if it
"(1) is frivolous, malicious, or fails to state a claim
upon which relief may be granted; or (2) seeks monetary
relief from a defendant who is immune from such relief."
28 U.S.C. § 1915A(b).
is frivolous if it "lacks an arguable basis either in
law or in fact." Miller v. Donald, 541 F.3d
1091, 1100 (11th Cir. 2008) (internal quotation marks
omitted). The Court may dismiss claims that are based on
"indisputably meritless legal" theories and
"claims whose factual contentions are clearly
baseless." Id. (internal quotation marks
omitted). A complaint fails to state a claim if it does not
include "sufficient factual matter, accepted as true, to
'state a claim to relief that is plausible on its