United States District Court, S.D. Georgia, Statesboro Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE.
while incarcerated at Macon State Prison in Oglethorpe,
Georgia, filed this action pursuant to 42 U.S.C. § 1983
and the Religious Land Use and Institutionalized Persons Act
(“RLUIPA”) 42 U.S.C. § 2000cc-1 et
seq., contesting certain conditions of his confinement
while incarcerated at Georgia State Prison
(“GSP”) in Reidsville, Georgia. Docs. 1, 1-1.
Plaintiff also filed a Motion for Leave to Proceed in
Forma Pauperis, doc. 2, and Motions for Preliminary
Injunction or Temporary Restraining Order, docs. 6, 7, 8,
For the reasons set forth below, the Court
DENIES Plaintiff leave to proceed in
forma pauperis. Additionally, I
RECOMMEND that the Court DISMISS
without prejudice Plaintiff's Complaint,
DENY as moot Plaintiff's remaining
Motions, docs. 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 17,
DIRECT the Clerk of Court to close this case
and enter the appropriate judgment of dismissal, and
DENY Plaintiff in forma pauperis
status on appeal.
Complaint, Plaintiff asserts numerous claims against dozens
of Defendants regarding his confinement at GSP. Doc. 1-1.
Plaintiff contends that: (1) Defendants' shaving policies
and customs violate the First and Eighth Amendments and
RLUIPA; (2) Defendants' disciplinary report procedures
violate substantive and procedural due process as well as
RLUIPA; (3) Defendants' administrative segregation review
violates the Equal Protection Clause; (4) Defendants
retaliated against him by keeping him in administrative
segregation; (5) Defendants' restrictions on inmates in
administrative segregation as well as the cell conditions
there violate the First and Eighth Amendments and RLUIPA; and
(6) Defendants violate due process by confiscating
prisoners' personal property without inventory or
opportunity for return. Id. at 55-58.
contends Defendants maintain a custom of forcibly shaving
inmates with unsanitary or broken clippers and ensure
compliance with forced shavings through disciplinary reports,
tasers, pepper-spray, and similar chemical agents.
Id. at 6-9. Plaintiff contends the Georgia
Department of Corrections' (“GDC”) written
policy requires shaving clippers be sanitized after every use
to prevent the spread of infectious disease. Id.
According to Plaintiff, Defendants ignore this policy and
forcibly use broken or “unsanitized” clippers. As
a result of Defendants' alleged shaving customs,
Plaintiff was forcibly shaved several times, most recently on
December 4, 2017. Id.
asserts Defendants threatened to forcibly shave him at
various times, beginning on September 20, 2017, and occurring
most recently on March 5, 2018. Id. at 9-13.
Plaintiff contends Defendants created false disciplinary
reports regarding his refusal to shave. Doc. 1-1 at 9-11.
After Plaintiff refused to shave, Plaintiff alleges multiple
Defendants forcibly shaved him, causing injuries to his
shoulders, cuts and bruises on his neck, hands, wrists, and
ankles, and skin damage to his pinky finger. Id.
Afterward, Plaintiff alleges Defendants subjected him to a
series of false disciplinary reports, confinement in
administrative segregation, and continued threats of forced
shaving. Id. at 11-13.
avers Defendants placed him in administrative segregation in
violation of his due process rights. Id. at 13-19.
Plaintiff contends administrative segregation hearings do not
afford inmates a meaningful opportunity to be heard, and that
the disciplinary report procedures run afoul of due process
guarantees. Id. at 19-24. Finally, Plaintiff states
the cell conditions and various restrictions imposed in
administrative segregation violate his rights under the First
and Eighth Amendment and his rights under RLUIPA.
Id. at 24-55.
argues he is in “imminent danger of serious physical
injury” from the forced shaves and from Defendants'
means of enforcing the shaving policy, which include
disciplinary action and the use of pepper spray and tasers.
Id. at 6-8 & n.2, 58-59. Further, Plaintiff
claims he is in imminent danger because Defendants injured
him during past forced shaves, threaten future forced shaves
with unsanitary clippers, and, when he is in administrative
segregation, deny him adequate food, medical care, and
exercise, and subject him to unsanitary cell conditions.
Id. at 58-59.
addition, Plaintiff avers he faces imminent danger due to
Defendants' custom of providing insufficient food to
prisoners in administrative segregation. Id. at
32-34. Plaintiff claims this custom caused him to lose 17
pounds and made him more susceptible to sinus infections.
Id. As to imminent danger due to lack of adequate
medical care, Plaintiff states Defendants have not provided
timely care for his shoulder pain and nerve damage in his
hands (although Plaintiff later underwent surgery for his
right wrist). Id. at 35-37. Plaintiff also states
Defendants do not provide timely dental care or
dentist-recommended Sensodyne toothpaste. Id.
Finally, Plaintiff feels he faces imminent danger due to
unsanitary cell conditions because Defendants allegedly leave
him exposed to feces, triggering allergy problems and three
sinus infections. Id. at 38-39, 58.
Three-Strikes Dismissal Under § 1915(g)
incarcerated individual, 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.
28 U.S.C. § 1915(g). The 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)), abrogated
in part on different grounds by Jones v. Bock, 549 U.S.
199 (2007). A prisoner barred from proceeding in
forma pauperis due to the “three strikes”
provision in § 1915(g) must pay the entire filing fee
when he initiates suit. Vanderberg v. Donaldson, 259
F.3d 1321, 1324 (11th Cir. 2001). When a prisoner who is
barred by the “three strikes” provision seeks
in forma pauperis status, courts must dismiss the
complaint without prejudice. Dupree v. Palmer, 284
F.3d 1234, 1236 (11th Cir. 2002) (finding that because the
filing fee must be paid “at the time [the
plaintiff-inmate] initiates the suit, ”
plaintiff-inmates “cannot simply pay the filing fee
after being denied in forma pauperis status” but may
refile file action after dismissal and pay the entire filing
fee upfront). The only exception is if the prisoner is
“under imminent danger of serious physical
injury.” § 1915(g); Medberry v. Butler,
185 F.3d 1189, 1192 (11th Cir. 1999).
Plaintiff's Litigation History
to its inherent authority under Federal Rule of Evidence 201,
the Court takes judicial notice of the dispositions of many
of Plaintiff's previous lawsuits. The Court also takes
judicial notice of the determination of the United States
District Court for the Middle District of Georgia, finding
that “Plaintiff has had more than three of his cases or
appeals dismissed on the statutorily-enumerated grounds [of
§ 1915(g)].” Daker v. Comm'r, No.
5:16-cv-538, 2017 WL 3584910, at *2 (M.D. Ga. Aug. 17, 2017).
has filed more than three civil actions or appeals which
count as strikes under § 1915(g). Actions filed by
Plaintiff which count as strikes under § 1915(g)
(1) Daker v. Governor, Case No. 15-13179 (11th Cir.
Order dated Dec. 19, 2016) (three-judge panel dismissing