United States District Court, S.D. Georgia, Statesboro Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE.
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.
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”).
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.
Plaintiff's Status as a
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
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.
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