United States District Court, M.D. Georgia, Macon Division
AMENDED ORDER AND RECOMMENDATION
Charles H. Weigle 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 Willie James Terrell, Jr, currently
confined at Fulton County Jail, filed the above-captioned
proceeding seeking relief under 42 U.S.C. § 1983.
Plaintiff also seeks to proceed in this action without the
prepayment of the court's filing fee and has filed a
Motion to Stay.
discussed below, Plaintiff may proceed with his Eighth
Amendment medical indifference claims against Defendants
Dixon and Kitchens. It is, however,
RECOMMENDED that Defendants Davis, Smith,
Hodge, West, Carr, Clarkson (or Clarkston), Jefferson, Bell,
and Mercer be DISMISSED WITHOUT PREJUDICE.
It is further RECOMMENDED that
Plaintiff's First Amendment Retaliation, Eighth Amendment
failure to intervene, and Fourteenth Amendment due process
claims be DISMISSED WITHOUT PRJEUDICE.
Motion to Stay
motion to stay Plaintiff alleges that he has been transferred
to the Fulton County Jail “for an unscheduled motion in
Arrest of Judgment.” Motion to Stay 1, ECF. No 5. He
requests that this action be stayed until he is transferred
back to Washington State Prison, where he will have increased
access to library services. Plaintiff states that he has
access to paper, pens, envelopes, and stamps at Fulton County
jail, and Plaintiff does not assert that he is unable to file
motions or is otherwise hindered in proceeding with his case
at this time. Plaintiff also states the he has access to the
Fulton County Jail law library.
desire to have increased access to the law library is not an
adequate basis to stay this case indefinitely. His Motion to
Stay (ECF No. 5) is, therefore, DENIED.
Plaintiff may file a motion for extension of time--when
appropriate--if he is unable to comply with future deadlines
of the Court.
Motion to Proceed In Forma Pauperis
seeks to 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 has filed numerous federal
lawsuits and appeals and at least three were dismissed as
frivolous, malicious, or for failure to state a claim.
See Terrell v. Grady Memorial Hosp., 1:08-cv-3931
(N.D.Ga. 2009) (case dismissed as frivolous); Terrell v.
Fulton County, 1:09-cv-00513 (N.D.Ga. 2009) (dismissed
for failure to state a claim); Terrell v. Grady Memorial
Hosp., 09-13077-D (11th Cir. 2009) (issued by three
judge panel “This Court now finds that the appeal is
frivolous”). Plaintiff has also previously been denied
in forma pauperis status under Section 1915(g). See
Terrell v. Owens, 1:12-cv-00028 (N.D.Ga. 2012);
Terrell v. Bass, 1:14-cv-00139 (M.D. Ga. 2014).
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 specific 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, 387 F.3d at 1347;
Tannenbaum v. United States, 148 F.3d 1262, 1263
(11th Cir. 1998).
as true and with inferences drawn in his favor,
Plaintiff's allegations are sufficient to suggest
imminent danger at this stage of the proceedings. Plaintiff
alleges that he was attacked by another inmate and seriously
injured on July 22, 2017. Comp. 5, ECF No. 1. Plaintiff
suffered from bruising, swelling, pain, “lumps”
on his head, and blurred vision with sensitivity to light.
Id. at 5. Following the assault, Plaintiff was taken
to medical and forced to drink from a used urinalysis cup.
Id. at 8. Plaintiff's vital signs were checked,
but the medical personnel otherwise refused to treat
Plaintiff until August 3, 2017, when Nurse Frances ordered
Plaintiff treated at a hospital. Plaintiff underwent x-ray
imaging, but the results were blurry. His medical providers
at Augusta University Medical Center then ordered a computed
tomography (“CT”) scan, but Defendants Dixon and
Kitchens prevented medical personnel from adequately
performing the scan in order to “protect the
state's budget.” Id. at 6. Plaintiff
states that he has not received treatment since. Id.
at 9. He suffers a continued and growing “lump on the
back of [his] head, ” frequent chest pains, and bloody
stools. Id. at 8, 10. Accepted as true, as is
required at this stage, Plaintiff's allegations are
sufficient to satisfy the imminent danger exception the three
strikes rule. See Brown, 387 F.3d 1344 (allegation of
untreated disease combined with risk of worsening condition
may constitute imminent danger)
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). A prisoner seeking to proceed in forma pauperis
(“IFP”) under this section must provide the
district court with both (1) an affidavit in support of his
claim of indigence and (2) a certified copy of his prison
“trust fund account statement (or institutional
equivalent) for the 6-month period immediately preceding the
filing of the complaint.” Id.
case, Plaintiff'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. Although Plaintiff's inmate
trust account statement indicates that he has received
deposits in the last six months, Plaintiff currently
spendable amount of $0.00. Therefore, it does not appear that
Plaintiff is able to pay an initial partial filing fee.
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 ...