United States District Court, M.D. Georgia, Macon Division
ORDER AND RECOMMENDATION
STEPHEN HYLES, 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 Robert L. Clark, an inmate confined at
Macon State Prison, (“MSP”) filed the
above-captioned proceeding seeking relief under 42 U.S.C.
§ 1983 and requesting to proceed without prepayment of
the Court's filing fees.
discussed below, Plaintiff may proceed with his Eighth
Amendment claims against Defendant Fye. However, it is
recommended that Plaintiff's Eighth Amendment claims
against Defendants Georgia Department of Corrections
Officials and Georgia Correctional Healthcare Officials be
dismissed without prejudice.
Motion to Proceed In Form Pauperis
seeks 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 (“IFP”) is subject to
PLRA requirements. That law states that “in no
event” shall a prisoner bring an IFP civil action or
[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, 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 IFP in
federal court is greatly limited and leave may not be granted
unless the prisoner shows an “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 numerous federal
lawsuits and appeals and at least two were dismissed as
frivolous, malicious, or for failure to state a claim.
Clark v. Carroll County Jail, 3:04-cv-00030 (N.D.Ga.
2004) (dismissed for failure to state a claim); Clark v.
Attorney General State of Georgia, 3:17-cv-00142 (M.D.
Ga. 2017) (dismissed for failure to state a claim). PACER
also reveals that the United States District Court for the
Northern District of Georgia has determined that Plaintiff
has accrued three strikes for purposes of 1915(g). See
e.g., Clark v. Georgia Supreme Court Judges,
1:17-cv-01172 (N.D.Ga. 2017).
Clark v. Carroll County Jail, 3:04-cv-00030 (N.D.Ga.
2004), the Northern District of Georgia determined that
Plaintiff had two strikes under the PLRA, based on prior
dismissals in: Clark v. Ingram, 1:02-cv-2485-RLV
(N.D.Ga. 2002) and Clark v. Cobb County Adult Detention
Center, et al., 1:02-cv-2391-RLV (N.D.Ga. 2002). There,
the Court relied on “Plaintiff's prisoner number
and handwriting.” Id. at ECF No. 6. This
Court, however, is unable to verify that the Robert L. Clark
that filed complaints in Ingram and Cobb County
Adult Detention Center is the same Robert L. Clark that
filed the present action. Notably, courts have previously
disagreed on what strikes to attribute to Plaintiff.
Compare Clark v. Jane Doe, 1:09-cv-3063 (N.D.Ga.
2011) (allowing plaintiff to proceed IFP) with Clark v.
Jackson, 1:11-cv-0023 (N.D.Ga. 2011) (denying Plaintiff
IFP status under 1915(g) and assessing a strike for the
dismissal in Clark v. Hudson, 1:03-cv-778 (N.D.Ga.
2003)) with Clark v. Carroll County Jail,
3:04-cv-00030 (N.D.Ga. 2004) (vacating order dismissing claim
under three strike rule because Clark v. Hudson,
1:03-cv-778 (N.D.Ga. 2003) could not be attributed to
Plaintiff has accumulated three strikes, he may not proceed
IFP 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  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 (11th Cir. 2004);
Tannenbaum v. United States, 148 F.3d 1262, 1263
(11th Cir. 1998).
initial review, the Court is currently unable to determine
that Plaintiff has accumulated three strikes for purposes of
1915(g). However, even if Plaintiff has accumulated three
strikes, he is entitled to proceed IFP. As discussed in more
detail below, Plaintiff alleges that he suffers from
Hepatitis B which the Georgia Department of Corrections
refuses to treat, and he faces serious life threatening
medical complications as a result. The undersigned accepts
these facts as true, as is required at this stage, and finds
them sufficient to satisfy the imminent danger exception.
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 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.
Plaintiff's pauper'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 IFP (ECF No. 2) is thus GRANTED. 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 ...