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Rushin v. Wilkes

United States District Court, M.D. Georgia, Macon Division

November 6, 2017

RONALD EARLE RUSHIN, Petitioner,
v.
Warden WILKES, et al, Respondents.

          ORDER

          MARC T. TREADWELL, JUDGE.

         Petitioner 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. § 1915(a).

         For the 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

         I. Motion to Proceed in forma pauperis

         Federal law bars a prisoner from bringing a "civil action"[1] in federal court in forma pauperis

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.

         A 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).

         To 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).

         In this 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.

         Petitioner's 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 pauperis.

         II. Preliminary Review

         Even if 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).

         A claim 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 face.'" ...


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