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Fedd v. Byird

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

June 5, 2019

LEVI ARTHUR FEDD, Plaintiff,
v.
UNIT MANAGER BYIRD, et al., Defendants.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE.

         Plaintiff 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 appeal.[1]

         DISCUSSION

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

         Plaintiff 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. 2018).

         Though 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);[2] and (3) Fedd v. Almedom, No. 5:15-cv-104 (M.D. Ga. Feb. 12, 2016) (dismissal for failure to exhaust administrative remedies).

         Because 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).

         II. Plaintiff's Allegations of Imminent Danger of Serious Physical Injury

         “In 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”).

         Though 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.

         Though 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 § 1915(g)).

         Because 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 ...


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