United States District Court, S.D. Georgia
MAGISTRATE JUDGE'S REPORT AND
K. EFPS UNITED STATES MAGISTRATE JUDGE.
an inmate incarcerated at Augusta State Medical Prison
(“ASMP”) in Grovetown, Georgia, seeks to proceed
in forma pauperis (“IFP”) in this action
filed pursuant to 42 U.S.C. § 1983. (Doc. no. 2.) For
the reasons set forth below, the Court
REPORTS and RECOMMENDS
Plaintiff's request to proceed IFP be
DENIED (doc. no. 2) and this action be
DISMISSED without prejudice.
prisoner attempting to proceed IFP in a civil action in
federal court must comply with the mandates of the Prison
Litigation Reform Act (“PLRA”), Pub. L. No.
104-134, §§ 801-810, 110 Stat. 1321 (1996). 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.
provision of the PLRA, commonly known as the three strikes
provision, requires frequent filer prisoners to prepay the
entire filing fee before federal courts may consider their
lawsuits and appeals.” Rivera v. Allin, 144
F.3d 719, 723 (11th Cir. 1998) (internal citations omitted),
abrogated on other grounds by Jones v. Bock, 549
U.S. 199 (2007). The Eleventh Circuit has upheld the
constitutionality of § 1915(g) because it does not
violate an inmate's right to access the courts, the
doctrine of separation of powers, an inmate's right to
due process of law, or an inmate's right to equal
protection. Id. at 721-27.
Dismissal Is Warranted Because Plaintiff Has Three Strikes
Under § 1915(g).
review of Plaintiff's history of filings reveals that he
has brought at least three cases that were dismissed as
frivolous or for failure to state a claim and count as
strikes: (1) Rushin v. Obriens, 1:10-CV-02106-RLV,
doc. no. 2 (N.D.Ga. July 29, 2010); (2) Ash (a/k/a
Rushin) v. Adamson, 4:10-CV-55-CDL-GMF, doc. nos. 7,
12 (M.D. Ga. June 30, 2010); and (3) Rushin v.
Freeman, 1:05-CV-01699-RLV, doc. no. 2 (N.D.Ga. Aug. 16,
2005); see also Rushin v. Williams et al.,
5:17-cv-00354-MTT-CHW (M.D. Ga. Nov. 16, 2017) (dismissing
Plaintiff's complaint for three strikes under §
1915(g)). Because Plaintiff has at least three strikes, he
cannot proceed IFP in the present case unless he can
demonstrate he qualifies for the “imminent danger of
serious physical injury” exception to § 1915(g).
Plaintiff Does Not Qualify for the Imminent Danger
come within the imminent danger exception, a prisoner must be
in imminent danger at the time he files suit in district
court, not at the time of the alleged incident that serves as
the basis for the complaint. Medberry v. Butler, 185
F.3d 1189, 1193 (11th Cir. 1999). Here, Plaintiff complains
of being housed at ASMP despite having no mental or physical
health diagnosis, which “plac[es] [him] in harms [sic]
way subjecting [him] to drug dealing gang/member [sic] that
are mentally retarded.” (See doc. no. 1, pp.
5-6.) However, “[i]n the [prison] setting, a risk of
harm to some degree always exists by the nature of its being
a [prison].” Purcell ex rel. Estate of Morgan v.
Toombs Cty., Ga., 400 F.3d 1313, 1323 (11th Cir. 2005).
Plaintiff provides no specific details concerning any
particularized danger. Indeed, he has not detailed even one
specific instance of violence against him since being housed
at ASMP. Plaintiff's vague fears without any specifics do
not by themselves demonstrate he was in any imminent danger
when he filed his complaint. See Medberry, 185 F.3d
at 1193; cf. Brown v. Johnson, 387 F.3d 1344, 1350
(11th Cir. 2004) (finding imminent danger of serious physical
injury where inmate complained of total withdrawal of
treatment for serious diseases, as a result of which he
suffered from severe ongoing complications). Therefore,
Plaintiff fails to demonstrate that he should be excused from
paying the full filing fee under the “imminent
danger” exception to § 1915(g)'s three strike
reasons set forth above, the Court REPORTS
and RECOMMENDS Plaintiff's request to
proceed IFP be DENIED (doc. no. 2) and this
action be DISMISSED without prejudice. If
Plaintiff wishes to proceed with the claims raised in this
lawsuit, he should be required to initiate a new lawsuit,
which would ...