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Terrell v. Davis

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

February 22, 2018



          Charles H. Weigle United States Magistrate Judge.

         This 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.

         As 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.

         I. Motion to Stay

         In his 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.

         Plaintiff's 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.

         II. Motion to Proceed In Forma Pauperis

         Plaintiff 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 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 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).

         Because 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).

         Construed 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)

         Section 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.

         In this 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.

         A. Directions to Plaintiff's Custodian

         It is 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 ...

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