United States District Court, S.D. Georgia, Statesboro Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE.
filed a Complaint pursuant to 42 U.S.C. § 1983 to
contest certain conditions of his confinement at Smith State
Prison in Glennville, Georgia. Doc. 1. Plaintiff filed suit
in the United States District Court for the Middle District
of Georgia, and that court transferred the matter to this
District. Doc. 5. The Court previously granted Plaintiff
leave to proceed in forma pauperis. Doc. 8. However,
for the reasons that follow, I VACATE the
December 6, 2018 Order granting Plaintiff leave to proceed
in forma pauperis, doc. 8, DENY
Plaintiff's Motion for Leave to Proceed in Forma
Pauperis, doc. 2, and 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
Plaintiff's Status as a
previously sought and was granted leave to bring this action
in forma pauperis. Docs 2, 8. 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.
the Court previously granted Plaintiff leave to proceed
in forma pauperis, upon Deal, No.
1:18-cv-58 (M.D. Ga. Jan. 22, 2019) (dismissing based on
Plaintiff's status as a three striker). A review of
Plaintiff's filing history reveals that, prior to filing
this suit on October 19, 2018, Plaintiff had at least three
civil actions or appeals which were dismissed, two for
failing to exhaust administrative remedies, and one action
dismissed as frivolous. These dismissals count as strikes
under § 1915(g). These cases are: (1) Fedd v.
Singh, No. 16-11805 (11th Cir. Feb 2, 2017) (three judge
panel dismissing appeal as frivolous); (2) Fedd v.
Holt, No. 1:16-cv-713 (N.D.Ga. Jan. 5, 2017) (dismissal
for failure to exhaust administrative
remedies); and (3) Fedd v. Almedom, No.
5:15-cv-104 (M.D. Ga. Feb. 12, 2016) (dismissal for failure
to exhaust administrative remedies).
Plaintiff has filed at least three previously-dismissed cases
or appeals which qualify as strikes under § 1915(g),
Plaintiff may not proceed in forma pauperis in this
action unless he can demonstrate that he meets the
“imminent danger of serious physical injury”
exception in § 1915(g).
Plaintiff's Allegations of Imminent Danger of Serious
order to come within the imminent danger exception, the
Eleventh Circuit requires ‘specific allegations of
present imminent danger that may result in serious physical
harm.'” Odum v. Bryan Cty. Judicial
Circuit, No. CV407-181, 2008 WL 766661, at *1 (S.D. Ga.
Mar. 20, 2008) (quoting Skillern v. Jackson, No.
CV606-49, 2006 WL 1687752, at *2 (S.D. Ga. June 14, 2006)).
“In determining whether the imminent-danger exception
applies, we construe a pro se plaintiff's complaint
liberally, accept all of the allegations as true, and view
the complaint as a whole.” O'Connor v.
Warden (O'Connor III), No. 17-14464, 2019
WL 413681, at *1 (11th Cir. Feb. 1, 2019). General and
conclusory allegations not grounded in specific facts
indicating that injury is imminent cannot invoke the §
1915(g) exception. Sutton v. Dist. Attorney's
Office, 334 Fed.Appx. 278, 279 (11th Cir. 2009)
(“[G]eneral assertions, even construed liberally, are
‘insufficient to invoke the exception to § 1915(g)
absent specific fact allegations of ongoing serious physical
injury, or of a pattern of misconduct evidencing the
likelihood of imminent serious physical injury.'”
(quoting Brown v. Johnson, 387 F.3d 1344, 1349-50
(11th Cir. 2004))); see also Skillern v. Paul, 202
Fed.Appx. 343, 344 (11th Cir. 2006); Medberry v.
Butler, 185 F.3d 1189, 1193 (11th Cir. 1999) (finding
inmate's allegations “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”).
Plaintiff's allegations are difficult to decipher, it
appears that Plaintiff is alleging Defendants placed him in
administrative segregation in retaliation for his filing
complaints against prison staff. Doc. 1 at 3. Plaintiff also
appears to allege that Defendants are interfering with his
access to legal materials. Id. at 2. Plaintiff asks
this Court to issue a preliminary injunction, but exactly
what conduct Plaintiff wishes the Court to enjoin is not
clear. Id. at 3.
Plaintiff included in his Complaint the phrases
“irreparable harm, ” id., and
“imminent danger of serious physical injury, ”
id at 1, none of his factual allegations suggest
that Plaintiff is in danger of any physical injury, much less
that he is imminent danger of serious physical injury.
Instead, Plaintiff only complains generally of the conditions
of his confinement without showing how these conditions pose
any danger to his health. Plaintiff may contest these
conditions in this Court, but given his litigation history,
he must refile and pre-pay the full filing fee to do so.
Dupree, 284 F.3d at 1236 (holding a court should
dismiss a complaint without prejudice when the court
determines a prisoner is barred from proceeding in forma
pauperis by the three strikes provision of §
Plaintiff is subject to the three strikes provision of the
Prison Litigation Reform Act and has failed to allege that he
is in imminent danger of serious physical injury, I find that
Plaintiff is not entitled to proceed in forma
pauperis in this action. Accordingly, I
VACATE the Court's December 6, 2018
Order granting Plaintiff leave to proceed in forma
pauperis, doc. 8, DENY Plaintiff's
Motion for Leave to Proceed in forma pauperis, doc.
2, and RECOMMEND the Court DISMISS