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Brewer v. Head

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

February 20, 2018

MICHAEL LANE BREWER, Plaintiff,
v.
Warden FREDERICK J. HEAD, et al., Defendants.

          RECOMMENDATION OF DISMISSAL

          Charles H. Weigle United States Magistrate Judge

         Plaintiff Michael Lane Brewer, a Georgia prisoner, has filed a pro se complaint seeking relief under 42 U.S.C. § 1983. Plaintiff also seeks leave to proceed in forma pauperis. For the reasons discussed below, the undersigned RECOMMENDS that Plaintiff's motion to proceed in forma pauperis be DENIED and that his Complaint be DISMISSED without prejudice. Plaintiff's pending motion for “further proceedings” is DENIED as moot.

         I. Motion for Leave to Proceed In Forma Pauperis

         Federal law bars a prisoner from bringing a civil action 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 Plaintiff has filed multiple 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 Appeal, ECF No. 35 in Brewer v. Bridges, Case No. 6:00-cv-00061-BAE-JEG (S.D. Ga. Feb. 5, 2001) (three-judge panel dismissing appeal as frivolous); Order Dismissing Compl., ECF No. 20 in Brewer v. Bridges, Case No. 6:00-cv-00061-BAE-JEG (S.D. Ga. Oct. 2, 2000) (adopting magistrate's recommendation to dismiss for failure to state a claim); Order Dismissing Appeal, Brewer v. Byrd, No. 00-11965 (11th Cir. Aug. 10, 2000) (three-judge panel dismissing appeal as frivolous). Plaintiff 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 (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).

         Plaintiff alleges that between July 29, 2017 and August 4, 2017, he complained that the “tray machine” in the food service area of Riverbend Correctional Facility (“RCF”) was “not properly working at proper temperatures - lower than 100º F - and there is no sanitizer connected to the machine.” Compl. 5, ECF No. 1. Plaintiff alleges that the condition of the tray machine places the “prisoners and staff” at RCF “at risk of serious illness, such as: salmonella poisoning and contracting Hepatitis A, B and C[.]” Id. Plaintiff states he became aware of this problem while he was an orderly and volunteer in the kitchen and that he reported the problem to the food service director, Defendant Cox, and to Defendant GEO Group, Inc., an entity that appears to be the contractor responsible for prison management. Id. at 6. Plaintiff also contends that he filed grievances “concerning [the] unclean tray room and machine” and was retaliated against by being “placed in Administrative Segergation [sic], pending investigation” for complaining about the “unethical and bad kitchen etiquette at the Riverbend Correctional Facility.” Id. at 7.

         Plaintiff's Complaint alleges that his exposure to trays and utensils that were apparently cleaned, but not “sanitized, ” could cause him to contract a deadly disease. These conclusory and speculative allegations fail to demonstrate that he was in imminent danger at the time his Complaint was filed. See, e.g., Daker v. Dozier, Civil Action No. 6:17-cv-110, 2018 WL 582581, at *3 (S.D. Ga. Jan. 29, 2018) (allegations that prisoner was being forcibly shaven with unsanitized clippers and subjected to “unsanitary prison conditions” were insufficient to establish an “imminent, serious danger”); Daker v. Dozier, Civil No. 5:17-CV-0025-CAR, 2017 WL 3037420, at *5, 6 (M.D. Ga. July 18, 2017) (allegations that “custom of supplying prisoners with damaged, unsanitary clippers . . . could, hypothetically, cause Plaintiff to become infected with a disease such as HIV or Hepatitis” and that prisoner was housed with inmates who threw feces and not provided with adequate cleaning supplies were insufficient to demonstrate that prisoner was in imminent danger of serious physical injury); Ball v. Allen, Civil Action No. 06-0496-CG-M, 2007 WL 484547, at *2-3 (S.D. Ala. Feb. 8, 2007) (allegations that prisoner was not permitted to regularly clean and sanitize cell, creating “unsanitary living environment” subjecting prisoner “to germs and diseases daily” and that prisoner “receives inadequate, unsanitary, and contaminated food and beverages, ” among other things, insufficient to show imminent danger); Jones v. Large, No. 7:05-CV-00496, 2005 WL 2218420, at *1 (W.D. Va. Sept. 13, 2005) (allegations that prisoner was served “cold or bad-smelling food” from “food trays that have been on the floor” insufficient to show that prisoner was “at any risk of ever suffering any serious physical injury”). Likewise, Plaintiff's allegations that he has been retaliated against for complaining about the allegedly unsanitary conditions at RCF fail to establish that he is in imminent danger of serious physical injury. Plaintiff states only that he has been placed in administrative segregation as a result of his complaints. See Compl. 7, ECF No. 1. Plaintiff does not describe the conditions of his confinement in the segregation unit or explain how those conditions placed him in imminent danger of serious physical injury. Plaintiff has therefore failed to establish that he should be excepted from the § 1915(g) bar.

         Based on the foregoing, it is RECOMMENDED that the Court DENY Plaintiff's motion to proceed in forma pauperis (ECF No. 2) pursuant to § 1915(g) and DISMISS his Complaint without prejudice to his right to refile with pre-payment of the full $400 filing fee. See Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (per curiam) (“[T]he proper procedure is for the district court to dismiss the complaint without prejudice when it denies the prisoner leave to proceed in forma pauperis pursuant to the three strikes provision of § 1915(g).”).

         II. Failure to Disclose Litigation History

         Even if Plaintiff's allegations of imminent danger were sufficient to permit him to avoid the three-strikes bar of § 1915(g), Plaintiff's Complaint should also be dismissed because he misled the Court about his extensive litigation history. Plaintiff drafted his Complaint on the standard § 1983 complaint form. The standard complaint form requires a pro se plaintiff to make a number of disclosures before stating his claims. Most relevant here is the fact that the form unambiguously states, “AS TO ANY LAWSUIT FILED IN ANY FEDERAL COURT in which you were permitted to proceed in forma pauperis, was any suit dismissed on the ground that it was frivolous, malicious, or failed to state a claim? Compl. 3, ECF No. 1. Plaintiff checked “No.” Id. The form further instructs the plaintiff to provide specific information about each lawsuit and states, “If your answer is Yes, state the name of the court and docket number as to each case[.]” Id. Plaintiff wrote “NA” in the blanks provided for such information. Id. The complaint form also asks whether Plaintiff has “ever submitted a lawsuit for filing in any federal or state court” dealing with the same or different facts involved in the present lawsuit. Id. at 2-3. Plaintiff's responses to these questions disclosed only one previously-filed lawsuit, filed in the Superior Court of Wheeler County, Georgia, which Plaintiff indicates he “won by way of settlement.” Id.

         As noted above, in addition to Plaintiff's single, disclosed state lawsuit, Plaintiff has filed many cases or appeals in the federal courts. Plaintiff has also been made aware on multiple occasions that he has had at least three cases or appeals dismissed for being frivolous, malicious, or for failing to state a claim and that he accordingly has three strikes for purposes of § 1915(g). See, e.g., Order Dismissing Compl. 2, ECF No. 5 in Brewer v. Wofford, No. 5:12-cv-00019-CAR-CHW (M.D. Ga. Jan. 20, 2012) (informing Plaintiff of three-strikes status in this Court); Order 1, ECF No. 12 in Brewer v. Smith, 6:03-cv-00138-BAE-WLB (S.D. Ga. Jan. 21, 2004) (counting at least five strikes and observing that “Brewer doesn't even pretend to seriously argue that he can meet the ‘imminent harm' exception of § 1915(g). Plus, he's been running a ‘bone dry' prison account, which evidently makes him feel immune to filing frivolous lawsuits with this Court”) (internal citations omitted)); Order, In re: Michael Brewer, ...


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