United States District Court, M.D. Georgia, Macon Division
RECOMMENDATION OF DISMISSAL
Charles H. Weigle United States Magistrate Judge
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.
Motion for Leave to Proceed In Forma
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.
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).
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).
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.
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.
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
Failure to Disclose Litigation History
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
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,