United States District Court, S.D. Georgia, Augusta Division
MAGISTRATE JUDGE'S REPORT AND
K. EPPS UNITED STAINS MAGISTRATE JUDGE
an inmate at Augusta State Medical Prison
(“ASMP”) in Grovetown, Georgia, seeks to proceed
in forma pauperis (“IFP”) in this action
filed pursuant to 42 U.S.C. § 1983. For the reasons set
forth below, the Court REPORTS and
RECOMMENDS Plaintiff's request to
proceed IFP be DENIED (doc. no. 2) and this
action be DISMISSED without prejudice.
prisoner attempting to proceed IFP in a civil action in
federal court must comply with the mandates of the Prison
Litigation Reform Act (“PLRA”), Pub. L. No.
104-134, §§ 801-810, 110 Stat. 1321 (1996). 28
U.S.C. § 1915(g) of the PLRA provides:
In no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under this section
if the prisoner 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.
provision of the PLRA, commonly known as the three strikes
provision, requires frequent filer prisoners to prepay the
entire filing fee before federal courts may consider their
lawsuits and appeals.” Rivera v. Allin, 144
F.3d 719, 723 (11th Cir. 1998) (internal citations omitted),
abrogated on other grounds by Jones v. Bock, 549
U.S. 199 (2007). The Eleventh Circuit has upheld the
constitutionality of § 1915(g) because it does not
violate an inmate's right to access the courts, the
doctrine of separation of powers, an inmate's right to
due process of law, or an inmate's right to equal
protection. Id. at 721-27.
Dismissal Is Warranted Because Plaintiff Has Three Strikes
Under § 1915(g).
review of Plaintiff's history of filings reveals that he
has brought at least three cases that were dismissed as
frivolous or for failure to state a claim upon which relief
may be granted: (1) Rushin v. Obriens,
1:10-CV-02106, doc. no. 2 (N.D.Ga. July 29, 2010)
(frivolous); (2) Ash v. Adamson, 4:10-CV-55, doc.
nos. 7, 12 (M.D. Ga. June 30, 2010) (failure to state a claim
and frivolous); and (3) Rushin v. Freeman,
1:05-CV-01699, doc. no. 2 (N.D.Ga. Aug. 16, 2005)
(frivolous). See also Rushin v. McGre[w],
1:17-CV-5479, doc. nos. 3, 5 (N.D.Ga. Feb. 8, 2018)
(collecting cases counted as strikes and dismissing case
under § 1915(g)). Because Plaintiff has at least three
strikes under § 1915(g), he cannot proceed IFP in the
present case unless he can demonstrate that he qualifies for
the “imminent danger of serious physical injury”
exception to § 1915(g). Mitchell v. Nobles, 873
F.3d 869, 873 (11th Cir. 2017).
Plaintiff Does Not Qualify for the Imminent Danger
prisoner's allegation that he faced imminent danger
sometime in the past is an insufficient basis to allow him to
proceed in forma pauperis pursuant to the imminent
danger exception to the statute.” Medberry v.
Butler, 185 F.3d 1189, 1193 (11th Cir. 1999). Rather, in
order to come within the imminent danger exception, a
prisoner must be in imminent danger at the time he files suit
in district court. Id. Moreover, vague and
conclusory allegations of imminent serious physical injury
will not suffice. See Brown v. Johnson, 387 F.3d
1344, 1350 (11th Cir. 2004) (citing with approval Eighth
Circuit precedent that conclusory allegations that defendant
were trying to kill plaintiff insufficient to satisfy
imminent danger exception); Odum v. Bryan Judicial
Circuit, No. CV 4:07-181, 2008 WL 766661, at *1 (S.D.
Ga. Mar. 20, 2008); Margiotti v. Nichols, No. CV
3:06-113, 2006 WL 1174350, at *2 (N.D. Fla. May 2, 2006)
(citation omitted). Here, Plaintiff generally complains about
the risk of harm at ASMP and alleges that prison officials
are trafficking in narcotics to create “potentially
violent dope addicted jackals.” (Doc. no. 1, p. 5.)
However, “[i]n the [prison] setting, a risk of harm to
some degree always exists by the nature of its being a
[prison].” Purcell ex rel Estate of Morgan v.
Toombs Cty., Ga, 400 F.3d 1313, 1323 (11th Cir. 2005).
Plaintiff provides no specific details concerning any
particularized danger. Indeed, he has not detailed even one
specific instance of harm befallen him at ASMP. In sum,
Plaintiffs vague and conclusory allegations of harm fail to
demonstrate that he should be excused from paying the full
filing fee under the “imminent danger” exception
to § 1915(g)'s three strike rule.
reasons set forth above, the Court REPORTS
and RECOMMENDS Plaintiffs motion to proceed
IFP be DENIED, (doc. no. 2), and this action
be DISMISSED without prejudice. If Plaintiff
wishes to proceed with the claims raised in this case, he
should be required to initiate a new lawsuit, which would