United States District Court, S.D. Georgia, Statesboro Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER, UNITED STATES MAGISTRATE JUDGE
currently incarcerated at Georgia State Prison in Reidsville,
Georgia, filed a cause of action pursuant to 42 U.S.C. §
1983. (Docs. 1, 11.) Plaintiff seeks leave to proceed in
forma pauperis, (doc. 2). For the reasons set forth
below, the Court DENIES Plaintiff's
Motion for Leave to Proceed in Forma Pauperis.
Furthermore, I RECOMMEND the Court
DISMISS without prejudice Plaintiff's
Complaint, DIRECT the Clerk of Court to
enter the appropriate judgment of dismissal and
CLOSE this case, and DENY
Plaintiff leave to proceed in forma pauperis on
filed his Complaint on January 16, 2018. (Doc. 1) On February
5, 2018, I recommended the Court dismiss Plaintiff's
Complaint because he qualifies as a
“three-striker” under 28 U.S.C. § 1915(g)
and fails to “make any ‘specific allegations'
of imminent danger of serious physical injury, much less any
facts supporting such an allegation.” (Doc. 6, p. 6.)
Subsequently, Plaintiff filed an Objection and Motion to
Amend stating that he could show facts supporting imminent
danger of physical injury. (Docs. 7, 9.) The Court vacated
its previous Report and Recommendation and directed Plaintiff
to file an amended complaint demonstrating said facts. (Doc.
10.) Plaintiff filed an Amended Complaint on March 20, 2018.
seeks to bring this action in forma pauperis. 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, 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 or 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 or 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).
Court looks to the instructions for pleading contained in the
Federal Rules of Civil Procedure when reviewing a complaint
on an application to proceed in forma pauperis.
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. 2001)).
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 Fed.Appx. 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 of Complaint Pursuant to Section 1915(g)
clearly qualifies as a “three-striker” under 28
U.S.C. § 1915(g) of the Prison Litigation Reform Act. 28
U.S.C. § 1915(g). This provision states:
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.
28 U.S.C. § 1915(g). Furthermore, 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 Court of Appeals has held to be a
“strike-worthy” form of dismissal under §
1915(g). See Rivera v. Allin, 144 F.3d 719, 723
(11th Cir. 1998); Malautea v. Suzuki Motor Co., 987
F.2d 1536, 1544 (11th ...