United States District Court, N.D. Georgia, Atlanta Division
UNITED STATES MAGISTRATE JUDGE'S FINAL REPORT AND
F. KING UNITED STATES MAGISTRATE JUDGE.
Brandon Che Lee, Federal Bureau of Prisons identification
number 45296-112, confined in the United States Penitentiary
in Atlanta, Georgia, has submitted a complaint - along with
two later filed complaints which have been consolidated into
this action by separate order. The Clerk of Court is
DIRECTED to adjust the docket to show that
this is a civil rights action under 28 U.S.C. § 1331 as
Plaintiff is a federal prisoner. The matter is before the
Court on Plaintiff's complaint, (Compl., ECF No. 1), and
consolidated supplemental complaints, (Suppl. Compls. 0454
and 0615, ECF Nos. 2-3), in which Plaintiff complains about
matters related to his confinement.
currently is serving a 240-month term of imprisonment based
on his convictions for mail fraud and identification-document
crimes. United States v. Lee, No. 8:07-cr-0207-AG-1
(C.D. Cal. June 3, 2010). Plaintiff is a prolific filer who
generally complains about matters such as electronic shocks
while his blood pressure is being taken, difficulty
contacting family members and the effect that his conviction
has had on his relationship with his family members, the
provision of poisonous food items from various sources and at
numerous times, and fellow prisoners fumbling their penises
in numerous locations and at virtually all times of the day.
See generally Final R. & R., Lee v.
Warden, No. 1:16-cv-4401-ODE (N.D.Ga. Feb. 7, 2017);
Final R. & R., Lee v. Warden, No.
1:16-cv-4009-ODE (N.D.Ga. Dec. 30, 2016); Final R. & R.,
Lee v. Jeong, No. 1:16-cv-3935-ODE (N.D.Ga. Dec. 19,
2016); Final R. & R., Lee v. Unnamed Defendant,
No. 1:16-cv-3279-ODE (N.D.Ga. Nov. 15, 2016).
current allegations are similar to the allegations that he
has made in his numerous prior actions. (See Compl.
and Suppl. Compls. 0454 and 0615). Plaintiff also
periodically asserts that he has been exposed to cigarette
smoke on certain days, (Compl. at 3, 6; Suppl. Compl. 0454 at
5), and that prison staff are trying to beat him up through
other inmates (apparently shown by an inmate yelling at
Plaintiff), (Suppl. Compl. 0615 at 5-6). Plaintiff further
states that a staff member has rubbed his body, allegedly in
order to sexually harass Plaintiff, (Compl. at 6; Suppl.
Compl. 0615 at 1-2), and that a lieutenant rubbed his entire
body at the kitchen door and “is intentionally touching
my ball with his two hands” and “is always”
targeting Plaintiff at the kitchen door, (Compl. at 1-2).
§ 1915(g) of Title 28 does not allow a prisoner to bring
an in forma pauperis civil action in federal court
“if the prisoner has, on 3 or more prior occasions,
while incarcerated . . ., 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.” When
§ 1915(g) does not allow a prisoner to proceed in
forma pauperis, the complaint should be dismissed
without prejudice, and, a prisoner wishing to pursue his or
her claims, must refile the action with full payment of the
filing fee. See Dupree v. Palmer, 284 F.3d 1234,
1236 (11th Cir. 2002).
while incarcerated, has filed at least three civil actions
that have been dismissed as frivolous, malicious, or for
failure to state a claim. See Order, Lee v.
Feather, No. 3:16-cv-1536-HZ (D. Or. Sep. 22, 2016)
(listing three district court dismissals); see also Lee
v. Maye, Appeal No. 14-3214 (10th Cir. Jan. 7, 2015)
(dismissing appeal as frivolous). The Court finds that
Plaintiff's pleadings are on the whole frivolous and that
his allegations of intrusive touching at the kitchen door do
not show that he is in imminent danger of serious physical
injury. See Husband v. Aleman-Acevedo, No.
3:16-CV-498, 2017 WL 157782, at *2 (M.D. Pa. Jan. 13, 2017)
(finding that prisoner's allegations - that in the months
prior to his filing his complaint an officer had
“groped his genitals and buttocks during pat-down
searches, yanked his hand restraints, stared at his genitals,
and made a sexual remark while he was in the shower” -
failed to show that prisoner was in imminent danger of
serious physical injury); cf. Boxer X v. Harris, 437
F.3d 1107, 1111 (11th Cir. 2006) (finding that, although
prisoner stated a claim based on his privacy rights, “a
female prison guard's solicitation of a male
prisoner's manual masturbation, even under the threat of
reprisal, does not present more than de minimis
injury” and that such allegation does not state a claim
under the Eighth Amendment).
Plaintiff's allegations of vague threats, general sexual
harassment, and periodic exposure to cigarette smoke do not
rise to the level of showing that he is in imminent danger of
serious physical injury. See Gresham v. Jenkins, No.
2:15-CV-11640, 2015 WL 3403942, at *3-4 (E.D. Mich. May 26,
2015) (finding that sexual abuse allegations - by prisoner
who had a history of filing numerous delusional claims - were
unsupported and failed to show that the prisoner was in
imminent danger); Bozeman v. Miles, No.
2:07-CV-182-MHT, 2007 WL 1034953, at *1 (M.D. Ala. Mar. 30,
2007) (finding that allegations of sexual harassment did not
show that the prisoner was under imminent danger of serious
physical injury); see also Foster v. Unidentified
Party, 34 F. App'x 963, 2002 WL 663757, at *1 (5th
Cir. 2002) (rejecting claim that exposure to second-hand
smoke presented an imminent danger of serious physical
injury); Gibbs v. Santos, No. 4:16-CV-12-DMB-JMV,
2016 WL 4919895, at *3 (N.D. Miss. Sept. 14, 2016) (rejecting
claim that exposure to second-hand smoke presented an
imminent danger under § 1915(g) to prisoner who was
concerned about exposure when he had only one kidney);
Johnson v. Mercer, No. 4:13CV321-RH/CAS, 2013 WL
4549052, at *2 (N.D. Fla. Aug. 28, 2013) (finding that danger
from unwanted tobacco smoke does not qualify as imminent
danger whereas danger from “‘internal bleeding,
intestinal obstruction, gangrene, and death' due to
delayed hernia surgery” would qualify as imminent
danger (quoting Jackson v. Jackson, 456 F. App'x
813, 814 n.* (11th Cir. Jan.31, 2012)); Wilson v.
Riley, No. 2:07-CV-891-WKW, 2007 WL 3120133, at *1 (M.D.
Ala. Oct. 23, 2007) (“While second hand smoke can cause
health problems, these potential ailments are not
sufficiently imminent to allow Wilson an exception to the
frequent filer provision of 28 U.S.C.1915(g).”).
IT IS RECOMMENDED that Plaintiff be
DENIED in forma pauperis status and
that this action, as consolidated, be DISMISSED
WITHOUT PREJUDICE. e The Clerk is
DIRECTED to withdraw the references to the
IS SO RECOMMENDED and DIRECTED.
The two later filed complaints
originally were docketed as civil action numbers 1:18-cv-0454