United States District Court, M.D. Georgia, Macon Division
ORDER AND RECOMMENDATION
STEPHEN HYLES, UNITED STATES MAGISTRATE JUDGE
case is currently before the United States Magistrate Judge
for preliminary screening as required by the Prison
Litigation Reform Act (“PLRA”), 28 U.S.C. §
1915A(a). Plaintiff Braja Smith, an inmate confined at Macon
State Prison, filed the above-captioned proceeding seeking
relief under 42 U.S.C. § 1983 and requesting to proceed
without prepayment of the Court's filing fees. Plaintiff
also filed Motion for Preliminary Injunction. Mot. for
Prelim. Inj., ECF No. 3.
discussed below, Plaintiff may proceed with his Eighth
Amendment Claims against Defendants Fye, Spikes, McLaughlin,
Kegler, Searcy, Jackson, Shirah, Ranson, Hamilton, Mims,
Fowlkes, Johnson, Miller, and Toby. It is
RECOMMENDED that Plaintiff's Eighth
Amendment claims against Defendants Burkes and Perofsky be
DISMISSED WITHOUT PRJEUDICE. It is further
RECOMMENDED that Plaintiff's motion for
preliminary injunction be DENIED.
Motion to Proceed In Form Pauperis
seeks leave to proceed in this action without prepaying the
court's full filing fee. Because Plaintiff is a prisoner
seeking relief from state officials, his request to proceed
in forma pauperis is subject to the Prison
Litigation Reform Act (“PLRA”). Pursuant to the
PLRA, “in no event” shall a prisoner bring an
in forma pauperis civil action or appeal 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.
Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir.
1999). If a prisoner incurs three strikes, his ability to
proceed in forma pauperis in federal court is
greatly limited and leave may not be granted unless the
prisoner shows an “imminent danger of serious physical
review of court records on the Federal Judiciary's Public
Access to Court Electronic Records (“PACER”)
database reveals that Plaintiff filed numerous federal
lawsuits and appeals and at least three were dismissed as
frivolous, malicious, or for failure to state a claim.
See Smith v. Owens, 5:12-cv-00292-MTT (M.D. Ga.
2013) (dismissed for failure to exhaust administrative
remedies); Smith v. Owens, 6:12-cv-00107-BAE-JEG
(S.D. Ga. 2013) (dismissed for failure to state a claim);
Smith v. Owens; 6:13-cv-00002-BAE-JEG (S.D. Ga.
2013) (dismissed for failure to state a claim).
of this, Plaintiff may not proceed in forma pauperis
unless he can show that he qualifies for the “imminent
danger” exception in § 1915(g). Medberry,
185 F.3d at 1193. To satisfy this provision a prisoner must
allege facts that describe “an ongoing serious physical
injury, or of 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) (quoting Brown v. Johnson,
387 F.3d 1344, 1350 (11th Cir. 2004)). When reviewing a pro
se prisoner's complaint for this purpose, the district
court must accept all factual allegations in the complaint as
true and view all allegations of imminent danger in
Plaintiff's favor. Brown v. Johnson, 387 F.3d
1344, 1347 (11th Cir. 2004); Tannenbaum v. United
States, 148 F.3d 1262, 1263 (11th Cir. 1998).
Plaintiff allegations as true and with inferences drawn in
his favor, Plaintiff has sufficiently alleged imminent danger
at this stage of the proceedings. As discussed in more detail
below, Plaintiff alleges that he suffered a series of life
threatening infections requiring intensive care and surgery
and resulting in debilitating complications. According to
Plaintiff, his conditions has been made worse by Defendants
past and present failure to provide him with proper and
prescribed treatment, including forcing Plaintiff to reside
in general population with open surgical wounds and without
receiving proper dressings. He further alleges that he is
being refused physical therapy prescribed by his physicians.
The undersigned accepts these facts as true, as is required
at this stage, and finds them sufficient to satisfy the
imminent danger exception.
1915 allows the district courts to authorize the commencement
of a civil action without prepayment of the normally-required
fees upon a showing that the plaintiff is indigent and
financially unable to pay the filing fee. 28 U.S.C. §
1915(b). Plaintiff's pauper's affidavit and trust
account statement show that he is currently unable to prepay
the Court's $350.00 filing fee. Plaintiff's motion to
proceed in forma pauperis (ECF No. 2) is thus
GRANTED. Plaintiff is, however, still
obligated to pay the full balance of the filing fee, in
installments, as set forth in § 1915(b) and explained
below. It is thus requested that the CLERK
forward a copy of this ORDER to the business
manager of the facility in which Plaintiff is incarcerated so
that withdrawals from his account may commence as payment
towards the filing fee.
Directions to Plaintiff's Custodian
hereby ORDERED the warden of the institution
wherein Plaintiff is incarcerated, or the Sheriff of any
county wherein he is held in custody, and any successor
custodians, each month cause to be remitted to the Clerk of
this court twenty percent (20%) of the preceding month's
income credited to Plaintiff's account at said
institution until the $350.00 filing fee has been paid in
full. In accordance with provisions of the Prison Litigation
Reform Act, Plaintiff's custodian is hereby authorized to
forward payments from the prisoner's account to the Clerk
of Court each month until the filing fee is paid in full,
provided the amount in the account exceeds $10.00. It is
further ORDERED that collection of monthly
payments from Plaintiff's trust fund account shall
continue until the entire $350.00 has been collected,
notwithstanding the dismissal of Plaintiff's lawsuit or
the granting of judgment against him prior to the collection
of the full filing fee.
Plaintiff's Obligations Upon Release
to provisions of the Prison Litigation Reform Act, in the
event Plaintiff is hereafter released from the custody of the
State of Georgia or any county thereof, he shall remain
obligated to pay any balance due on the filing fee in this
proceeding until said amount has been paid in full; Plaintiff
shall continue to remit monthly payments as required by the
Prison Litigation Reform Act. Collection from Plaintiff of
any balance due on the filing fee by any means permitted by
law is hereby authorized in the event Plaintiff is released
from custody and fails to remit payments. Plaintiff's
complaint is subject to dismissal if he has the ability to
make monthly payments and fails to do so.
Preliminary Review of Plaintiff's
Standard for ...