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Clark v. Fye

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

March 23, 2018

ROBERT L CLARK, Plaintiff,
v.
CHIQUITA A. FYE, et al., Defendants.

          ORDER AND RECOMMENDATION

          STEPHEN HYLES, 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 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.

         As 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.

         I. Motion to Proceed In Form Pauperis

         Plaintiff 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 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, 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.

         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 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).

         In 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).[1]

         If 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).

         On 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.

         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 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.

         Here, 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.

         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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