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Cassady v. Dozier

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

January 11, 2018

DAVID DWAYNE CASSADY, also known as DANA MARIE CASSADY, Plaintiff,
v.
Commissioner GREGORY DOZIER, et al., Defendants.

          RECOMMENDATION OF DISMISSAL

          Charles H. Weigle United States Magistrate Judge

         Plaintiff Dana Marie Cassady, a prisoner at the Baldwin State Prison in Hardwick, Georgia, has filed a pro se civil rights complaint under 42 U.S.C. § 1983.[1] Compl., ECF No. 1. She also seeks leave to proceed without prepayment of the filing fee or security therefor pursuant to 28 U.S.C. § 1915(a). Mot. for Leave to Proceed In Forma Pauperis, ECF No. 2. For the reasons discussed below, it is RECOMMENDED that Plaintiff's application to proceed in forma pauperis be DENIED and the complaint be DISMISSED without prejudice to Plaintiff's right to refile a new action and pay the filing fee.

         The district courts may authorize the commencement of a civil action without prepayment of the normally-required fees if the plaintiff shows that she is indigent and financially unable to pay the filing fee. See 28 U.S.C. §1915(b). A prisoner seeking to proceed IFP under this section must provide the district court with both (1) an affidavit in support of her claim of indigence and (2) a certified copy of her prison “trust fund account statement (or institutional equivalent) for the 6-month period immediately preceding the filing of the complaint.” Id.

         Federal law prohibits a prisoner from bringing a civil action in federal court in forma pauperis, however,

if [she] 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 she has a federal lawsuit or appeal dismissed on the grounds that it is frivolous or malicious or fails to state a claim. Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999). If a prisoner incurs three strikes, her ability to proceed in forma pauperis in federal court is greatly limited: leave may not be granted unless the prisoner alleges an “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 Plaintiff has filed multiple lawsuits in federal court and that at least three of her complaints or appeals have been dismissed on a ground that constitutes a strike. See, e.g., Order Dismissing Compl., Cassady v. Hamrick, Case No. 4:07-cv-00188-CDL (M.D. Ga. Oct. 16, 2017), ECF No. 17 (dismissing complaint for failure to state a claim); Order Dismissing Compl., Cassady v. Williams, Case No. 4:08-cv-177-BAE-GRS (S.D. Ga. Nov. 24, 2008), ECF No. 11 (dismissing case for failure to exhaust administrative remedies)[2]; Order Dismissing Compl., Cassady v. R.J. Reynolds Tobacco Co., Case No. 3:13-cv-92-DHB-BKE (S.D. Ga. Oct. 23, 2014), ECF No. 27 (dismissing complaint for failure to state a claim); Order Dismissing Compl., Cassady v. Dozier, Case No. 3:17-cv-35-DHB-BKE (S.D. Ga. Nov. 27, 2017), ECF No. 11 (dismissing case for abuse of judicial process). Because of this, Plaintiff may not proceed in forma pauperis unless she qualifies for the “imminent danger” exception in § 1915(g). Medberry, 185 F.3d at 1193.

         To satisfy the “imminent danger” requirement, a prisoner must allege the existence of a present and imminent danger of serious physical injury. See Id. at 1193. General allegations that are not grounded in specific facts which indicate that serious physical injury is imminent are not sufficient to invoke the exception to § 1915(g). See Brown v. Johnson, 387 F.3d 1344, 1450 (11th Cir. 2004). Here, Plaintiff asserts that Defendants have denied her sex reassignment surgery. Plaintiff's complaint does not, however, set forth any specific facts identifying an imminent danger of serious physical injury as a result of the denial of surgery.

         In particular, Plaintiff alleges that she currently must take hormones, which would no longer be needed if she were to undergo sex reassignment surgery. Compl. 24, ECF No. 1. Moreover, Plaintiff asserts that use of such hormones can potentially lead to health risks, particularly for individuals like Plaintiff, who already have certain health conditions. Id. Plaintiff's complaint states, however, that her conditions are currently under control, and she does not allege that there is any imminent risk of harm from her use of the hormones, only that such harm is possible. Id. Thus, these allegations do not satisfy the imminent danger exception. See Brown, 387 F.3d at 1450.

         Because Plaintiff has failed to demonstrate that she is entitled to proceed in forma pauperis despite her three strikes, it is RECOMMENDED that Plaintiff's motion for leave to proceed in forma pauperis be DENIED and her complaint be DISMISSED WITHOUT PREJUDICE.[3]

         Pursuant to 28 U.S.C. § 636(b)(1), Plaintiff may serve and file written objections to this recommendation with United States District Court Judge Marc T. Treadwell within FOURTEEN (14) DAYS of his being served with a copy of this Order. Plaintiff may seek an extension of time in which to file written objections or amendments, provided a request for an extension is filed prior to the deadline for filing written objections. Failure to object in accordance with the provisions of § 636(b)(1) waives the right to challenge on appeal the district judge's order based on factual and legal conclusions to which no objection was timely made. See 11th Cir. R. 3-1.

         SO RECOMMENDED,

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