United States District Court, S.D. Georgia, Dublin Division
MAGISTRATE JUDGE’S REPORT AND
K. EPPS UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OF
an inmate at Johnson State Prison in Wrightsville, Georgia,
seeks to proceed in forma pauperis (“IFP”) in
this action filed pursuant to 42 U.S.C. § 1983. (Doc.
no. 1.) For the reasons set forth below, the Court REPORTS
and RECOMMENDS Plaintiff’s request to proceed IFP be
DENIED, (doc. no. 2), Plaintiff’s motion for
appointment of counsel be DENIED, (doc. no. 4), and this
action be DISMISSED without prejudice.
prisoner attempting to proceed IFP in a civil action in
federal court must comply with the mandates of the Prison
Litigation Reform Act (“PLRA”), Pub. L. No.
104-134, §§ 801-810, 110 Stat. 1321 (1996). 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.
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) (internal citations omitted),
abrogated on other grounds by Jones v. Bock, 549
U.S. 199 (2007). The Eleventh Circuit has upheld the
constitutionality of § 1915(g) because it does not
violate an inmate’s right to access the courts, the
doctrine of separation of powers, an inmate’s right to
due process of law, or an inmate’s right to equal
protection. Id. at 721-27.
Dismissal Is Warranted Because Plaintiff Has Three Strikes
Under § 1915(g)
review of Plaintiff’s history of filings reveals he has
brought at least three cases that were dismissed as frivolous
or for failure to state a claim and count as strikes: (1)
Bivins v. Dereisbail, No. 13-14561 (11th Cir. Mar.
13, 2014) (dismissing appeal as frivolous); (2) Bivins v.
Woods, 1:12-CV-162-WLS (M.D. Ga. Nov. 5, 2012)
(dismissed for failure to state a claim); and (3) Bivins
v. Concept, Inc., 7:95-CV-612 (N.D. Ala. June. 8, 1995)
(dismissed as frivolous); see also Bivins v.
Kellogg, 1:18-CV-0148 (M.D. Ga. Dec. 10, 2018) (finding
Plaintiff has three strikes under § 1915(g) but
satisfied imminent danger exception). Because Plaintiff has
at least three strikes, he cannot proceed IFP unless he can
demonstrate he qualifies for the “imminent danger of
serious physical injury” exception to § 1915(g).
Mitchell v. Nobles, 873 F.3d 869, 873 (11th Cir.
Plaintiff Does Not Qualify for the Imminent Danger
prisoner’s allegation that he faced imminent danger
sometime in the past is an insufficient basis to allow him to
proceed in forma pauperis pursuant to the imminent
danger exception to the statute.” Medberry v.
Butler, 185 F.3d 1189, 1193 (11th Cir. 1999). In order
to come within the imminent danger exception based on failure
to treat a serious medical need, a prisoner must allege a
“‘total withdrawal of treatment for [his] serious
diseases . . . .’” Mitchell, 873 F.3d at
874 (quoting Brown v. Johnson, 387 F.3d 1344, 1350
(11th Cir. 2004)).
Plaintiff makes several claims in his forty-seven-page
complaint, only the following are arguably relevant to
whether Plaintiff satisfies the imminent danger
exception.Plaintiff alleges he was diagnosed on
February 4, 2018, as “near blind” and prescribed
magnified glasses for near-sightedness and far sightedness.
(Doc. no. 1, p. 6.) Plaintiff has reported to medical twice
to receive eyeglasses, but, on both occasions, the strength
of the prescription has been incorrect. (Id. at 41.)
As a result, Plaintiff has been deprived of access to
accommodations such as kiosks, recreation, television,
telephone use, games, computers, a giant print dictionary,
the library, the law library, and a safe living environment.
(Id. at 7, 26.) However, Plaintiff states he has
been allowed to use the large screen in the law library, but
he still cannot read standard print sizes. (Id. at
alleges he was stabbed by two inmates and robbed on August
19, 2018, because his lack of eyesight prevented him from
being able to protect himself. (Id. at 9-10.)
Plaintiff was treated for the attack and had at least one
follow-up appointment for his wounds. (Id. at 10,
14-15.) Although a nurse told Plaintiff he should have been
taken to the emergency room for his wounds, which are
“healing from inside out,” (id. at
14-15), Plaintiff does not complain of any complications from
the stab wounds. However, Plaintiff alleges he has high blood
pressure, dizziness, eczema, and mental health issues because
of the attack. (Id. at 15, 24-25.) While Plaintiff
states his requests for a psychiatric consult have been
denied, Plaintiff is being treated for his mental health
issues with Prozac and has been prescribed medication for his
eczema. (Id. at 19, 24-25.)
the attack, Plaintiff was placed in a solitary cell, which
does not have a night light. (Id. at 11-12.) As a
result of the dark conditions in the cell at night, Plaintiff
has hit his head on the top runner of the bunk, fallen and
hit his chin, and hit his knees on the toilet, causing cuts
and bruises. (Id. at 12, 18.) Plaintiff also states
his hand was once slammed in a door because of his poor
eyesight. (Id. at 7.) In his memorandum of law,
Plaintiff states he has found ...