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Clayton v. Evans

United States District Court, S.D. Georgia, Statesboro Division

March 18, 2019

EARNEST BARNARD CLAYTON, Plaintiff,
v.
CHRISTINA EVANS, et al., Defendants.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE.

         Plaintiff filed this cause of action pursuant to 42 U.S.C. § 1983 while incarcerated at Georgia State Prison in Reidsville, Georgia. Doc. 1. Plaintiff seeks leave to proceed in forma pauperis. Doc. 2. For the reasons set forth below, the Court DENIES Plaintiff's Motion to Amend, doc. 4, and DENIES Plaintiff's Motion to Proceed in Forma Pauperis. 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 appeal.[1]

         PLAINTIFF'S ALLEGATIONS

         Plaintiff filed this action on December 11, 2017. Doc. 1. Over a year later, on January 14, 2019, Plaintiff filed a motion asking for leave to file an amended Complaint. Doc. 4. The Court has considered the factual allegations of Plaintiff's Amended Complaint, doc. 4-1, in making this ruling. However, as discussed below, the Amended Complaint is futile because Plaintiff's action would still be subject to dismissal even if leave to amend were granted. Thus, the Court DENIES Plaintiff leave to amend. Delgiudice v. Primus, 679 Fed.Appx. 944, 949 (11th Cir. 2017) (“A district court may properly deny leave to amend the complaint under Rule 15(a) if an amendment would be futile” and “the complaint as amended would still be properly dismissed”).

         Plaintiff's Complaint, doc. 1, and Amended Complaint, doc. 4-1, are nearly identical to many of his other complaints already determined to be deficient by this Court. See, e.g., Clayton v. Williams, 6:16-cv-151 (S.D. Ga. Nov. 14, 2017); Clayton v. Williams, 6:16-cv-174 (S.D. Ga. Mar. 20, 2017); Clayton v. Williams, No. 6:17-cv-70 (S.D. Ga. Dec. 6, 2017); see also Mathis v. Smith, 181 Fed.Appx. 808, 809-10 (11th Cir. 2006) (“When considering the issue of frivolity, ‘a litigant's history of bringing unmeritorious litigation can be considered.'” (quoting Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001))). Plaintiff names 20 Defendants and provides a 10-page attachment of mainly illegible and nonsensical text to his Complaint form. The Amended Complaint provides names for several John Doe Defendants and adds factual information. Doc. 4-1. His Complaint, as amended, raises many of the same unrelated issues from his previous complaints, such as poor prison sanitation, lack of due process for his placement in administrative segregation, excessive force, retaliation, and failure to protect. Doc. 1 at 5-15; Doc. 4-1 at 6-10.

         DISCUSSION

         I. Plaintiff's Status as a “Three-Striker”

         Plaintiff seeks to bring this action in forma pauperis. Doc 2. Under 28 U.S.C. § 1915(g), indigent prisoners are barred from proceeding in forma pauperis after filing three meritless actions. 28 U.S.C. § 1915(g); Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002). 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.

§ 1915(g). “After the third meritless suit, ” the prisoner may continue to file suits with the court but “must pay the full filing fee at the time he initiates suit.” Dupree, 284 F.3d at 1236. Therefore, when a prisoner seeking in forma pauperis status is barred by the three strikes provision, courts should dismiss the complaint without prejudice. Id. The only exception is if the prisoner makes a showing of “imminent danger of serious physical injury.” Ingram v. Warden, 735 Fed.Appx. 706 (11th Cir. 2018).

         As this Court has recently noted in other cases brought by Plaintiff, he clearly qualifies as a “three-striker” under 28 U.S.C. § 1915(g) of the Prison Litigation Reform Act. See Clayton v. Allen, No. 6:18-cv-5 (S.D. Ga. May 9, 2018) (dismissing based on Plaintiff's status as a third striker); Clayton v. Lones, No. 6:18-cv-33 (S.D. Ga. July 23, 2018) (same). A review of Plaintiff's filing history reveals that, prior to filing this suit on December 11, 2017, Plaintiff had at least three civil actions or appeals which were dismissed, in part, for failing to state a claim and, thus, count as strikes under § 1915(g). A non-exhaustive list of these cases includes:

1) Clayton v. Williams, No. 6:17-cv-70 (S.D. Ga. Dec. 6, 2017) (dismissal for failure to state a claim and failure to follow court order);
2) Clayton v. Williams, No. 6:16-cv-151 (S.D. Ga. Nov. 14, 2017) (dismissal for failure to state a claim and failure to follow court order);
3) Clayton v. Williams, No. 6:16-cv-174 (S.D. Ga. Mar. 20, 2017) (dismissal for failure to state a claim and ...

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