United States District Court, S.D. Georgia, Dublin Division
MAGISTRATE JUDGE'S REPORT AND
K. EPPS UNITED STATES MAGISTRATE JUDGE.
an inmate at Coffee Correctional Facility in Nicholls,
Georgia, seeks to proceed in forma pauperis
(“IFP”) in this action filed pursuant to 42
U.S.C. § 1983 regarding events alleged to have occurred
at Wheeler Correctional Facility (“WCF”) in
Alamo, Georgia. (Doc. no. 1.) For the reasons set forth
below, the Court REPORTS and
RECOMMENDS Plaintiff's request to
proceed IFP be DENIED, (doc. no. 2), and
this action be DISMISSED without prejudice.
prisoner attempting to proceed IFP in a civil action in
federal court must comply with the mandates of the Prison
Litigation Reform Act (“PLRA”), Pub. L. No.
104-134, §§ 801-810, 110 Stat. 1321 (1996). 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.
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) (internal citations omitted),
abrogated on other grounds by Jones v. Bock, 549
U.S. 199 (2007). The Eleventh Circuit has upheld the
constitutionality of § 1915(g) because it does not
violate an inmate's right to access the courts, the
doctrine of separation of powers, an inmate's right to
due process of law, or an inmate's right to equal
protection. Id. at 721-27.
Dismissal Is Warranted Because Plaintiff Has Three Strikes
Under § 1915(g)
review of Plaintiff's history of filings reveals he has
brought at least three cases that were dismissed as frivolous
or for failure to state a claim and count as strikes: (1)
Jackson v. Phillips, CV 415-127 (S.D. Ga. Nov. 25,
2015) (dismissing as frivolous); (2) Jackson v.
Ruffini, CV 414-249 (S.D. Ga. Nov. 25, 2015) (dismissing
as frivolous); and (3) Jackson v. Grogan, CV 414-250
(S.D. Ga. Nov. 25, 2015) (dismissing as frivolous); see
also Jackson v. State of Georgia, CV 417-046
(S.D. Ga. Apr. 28, 2017) (dismissed for three strikes under
§ 1915(g)); Jackson v. Hamilton, CV 318-088
(S.D. Ga. Dec. 17, 2018) (dismissed for three strikes under
§ 1915(g)). Because Plaintiff has at least three
strikes, he cannot proceed IFP unless he can demonstrate he
qualifies for the “imminent danger of serious physical
injury” exception to § 1915(g). Mitchell v.
Nobles, 873 F.3d 869, 873 (11th Cir. 2017).
Plaintiff Does Not Qualify for the Imminent Danger
prisoner's allegation 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.” Medberry v.
Butler, 185 F.3d 1189, 1193 (11th Cir. 1999). In order
to come within the imminent danger exception based on failure
to treat a serious medical need, a prisoner must allege a
“‘total withdrawal of treatment for [his] serious
diseases . . . .'” Mitchell, 873 F.3d at
874 (quoting Brown v. Johnson, 387 F.3d 1344, 1350
(11th Cir. 2004)).
alleges he first complained of an infected scalp, which bled,
hurt, and itched, on January 24, 2018. (Doc. no. 1, p. 6.)
One to two weeks later, Plaintiff saw a nurse who could not
diagnose the problem and scheduled an appointment with a
doctor. (Id.) By February 28, 2018, Plaintiff had
not seen a doctor and filed a grievance. (Id.)
Plaintiff put in another medical request on March 14, 2018,
because he had still not received help. (Id.) About
a month after filing his grievance, Plaintiff saw a doctor
remotely by videoconference, and the doctor prescribed
medicine. (Id. at 6, 8.) Because a nurse ordered the
wrong medicine, the medicine was reordered but given to the
wrong person and had to be ordered again. (Id. at
8.) The prescription arrived on October 16, 2018, but a nurse
told Plaintiff it did not come with a prescription.
(Id.) The next day a nurse told Plaintiff he could
not take the medicine because it was two months old.
(Id.) The lack of treatment caused Plaintiff stress
because people think he has a contagious disease.
(Id. at 9.) Plaintiff is still in pain and he is
“stressed about his health.” (Id.)
10, 2016, Plaintiff requested medical attention for a broken
toe, which was healing incorrectly. (Id. at 7.) On
September 25, 2016, a doctor “at [his] county
jail” examined Plaintiff and prescribed him soft shoes
but did not perform an x-ray because he did not want to be
responsible for the medical bill. (Id.) On January
2, 2018, Plaintiff was transferred back to WCF, but medical
personnel “kept pushing him off.” (Id.)
As a result, Plaintiff's foot healed incorrectly and he
experiences extreme pain when he bends it or puts too much
weight on it. (Id.) Plaintiff also experiences
balance issues and had to be put on crutches. (Id.)
Between September 7 and 18, 2018, Plaintiff's foot was
x-rayed. (Id.) A month later, medical personnel told
Plaintiff they could not help him but gave him the option of
taking pain medication and wearing toe pads to keep his toes
from rubbing together. (Id.)
alleges the same facts as he did in a previous complaint this
Court dismissed for three strikes under § 1915(g).
See Jackson v. Hamilton, CV 318-088 (S.D. Ga. Dec.
17, 2018). Again, Plaintiff's allegations do not
establish he faces an “imminent danger of serious
physical injury.” Mitchell, 873 F.3d at 874.
The toe and scalp conditions he describes may be bothersome
but do not ...