United States District Court, S.D. Georgia, Statesboro Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER, UNITED STATES MAGISTRATE JUDGE.
an inmate at the Georgia Diagnostic & Classification
Prison in Jackson, Georgia, filed a cause of action pursuant
to 42 U.S.C. § 1983 regarding events occurring when he
was housed at Georgia State Prison in Reidsville, Georgia.
(Doc. 1.) Along with his Complaint, Plaintiff filed a Motion
for Leave to Proceed in Forma Pauperis. (Doc. 3.)
For the reasons which follow, the Court
DENIES Plaintiff's Motion for Leave to
Proceed in Forma Pauperis. For these same reasons, I
RECOMMEND the Court DISMISS without
prejudice Plaintiff's Complaint pursuant to 28
U.S.C. § 1915(g), DIRECT the Clerk of
Court to CLOSE this case and enter the
appropriate judgment of dismissal, and DENY
Plaintiff in forma pauperis status on
Complaint, Plaintiff asserts he was served with several
“infraction reports” while he was housed at
Georgia State Prison between February 27 and July 17, 2017,
and the service of these reports was not done in accordance
with Standard Operating Procedure IIB02-0001. (Doc. 1-1, p.
2.) It also appears Plaintiff contends unspecified Defendants
allowed Plaintiff to be sent from the Special Management Unit
at Georgia Diagnostic to the general population on an
unspecified date, which resulted in Plaintiff missing certain
packages. (Id. at p. 4.)
has brought this action, seeking to proceed in forma
pauperis under 42 U.S.C. § 1983. Under 28 U.S.C.
§ 1915(a)(1), the Court may authorize the filing of a
civil lawsuit without the prepayment of fees if the plaintiff
submits an affidavit that includes a statement of all of his
assets and shows an inability to pay the filing fee and also
includes a statement of the nature of the action which shows
that he is entitled to redress. Even if the plaintiff proves
indigence, the Court must dismiss the action if it is
frivolous, malicious, or fails to state a claim upon which
relief may be granted. 28 U.S.C. §§
1915(e)(2)(B)(i)-(ii). Additionally, pursuant to 28 U.S.C.
§ 1915A, the Court must review a complaint in which a
prisoner seeks redress from a governmental entity. Upon such
screening, the Court must dismiss a complaint, or any portion
thereof, that is frivolous, malicious, or fails to state a
claim upon which relief may be granted or which seeks
monetary relief from a defendant who is immune from such
relief. 28 U.S.C. § 1915A(b).
reviewing a complaint on an application to proceed in
forma pauperis, the Court is guided by the instructions
for pleading contained in the Federal Rules of Civil
Procedure. See Fed. R. Civ. P. 8 (“A pleading
that states a claim for relief must contain [among other
things] . . . a short and plain statement of the claim
showing that the pleader is entitled to relief.”);
Fed.R.Civ.P. 10 (requiring that claims be set forth in
numbered paragraphs, each limited to a single set of
circumstances). Further, a claim is frivolous under Section
1915(e)(2)(B)(i) “if it is ‘without arguable
merit either in law or fact.'” Napier v.
Preslicka, 314 F.3d 528, 531 (11th Cir. 2002) (quoting
Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir.
a complaint fails to state a claim under Section
1915(e)(2)(B)(ii) is governed by the same standard applicable
to motions to dismiss under Federal Rule of Civil Procedure
12(b)(6). Thompson v. Rundle, 393 F. App'x 675,
678 (11th Cir. 2010). Under that standard, this Court must
determine whether the complaint contains “sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A plaintiff must assert “more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not” suffice. Twombly,
550 U.S. at 555. Section 1915 also “accords judges not
only the authority to dismiss a claim based on an
indisputably meritless legal theory, but also the unusual
power to pierce the veil of the complaint's factual
allegations and dismiss those claims whose factual
contentions are clearly baseless.” Bilal, 251
F.3d at 1349 (quoting Neitzke v. Williams, 490 U.S.
319, 327 (1989)).
analysis, the Court will abide by the long-standing principle
that the pleadings of unrepresented parties are held to a
less stringent standard than those drafted by attorneys, and
therefore, must be liberally construed. Haines v.
Kerner, 404 U.S. 519, 520 (1972); Boxer X v.
Harris, 437 F.3d 1107, 1110 (11th Cir. 2006)
(“Pro se pleadings are held to a less
stringent standard than pleadings drafted by attorneys . . .
.”) (quoting Hughes v. Lott, 350 F.3d 1157,
1160 (11th Cir. 2003)). However, Plaintiff's
unrepresented status will not excuse mistakes regarding
procedural rules. McNeil v. United States, 508 U.S.
106, 113 (1993) (“We have never suggested that
procedural rules in ordinary civil litigation should be
interpreted so as to excuse mistakes by those who proceed
Dismissal Under Section 1915(g)
prisoner such as Plaintiff attempting to proceed in forma
pauperis in a civil action in federal court must comply
with the mandates of the Prison Litigation Reform Act
(“PLRA”). Pertinently, 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.
Eleventh Circuit Court of Appeals has explained that
“[t]his 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) (quoting Lyon v. Krol, 127 F.3d
763, 764 (8th Cir. 1997)).Dismissals for providing false
filing-history information and failing to comply with court
orders both fall under the category of “abuse of the
judicial process”, which the Eleventh Circuit has held
to be a “strike-worthy” form of dismissal under
Section 1915(g). See id. at 731 (dismissal for
failure to disclose prior litigation is “precisely the
type of strike that Congress ...