United States District Court, S.D. Georgia, Dublin Division
MAGISTRATE JUDGE'S REPORT AND
K. EPFS UNITED STATES MAGISTRATE JUDGE
an inmate at Baldwin State Prison (“BSP”) in
Hardwick, 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 Johnson State Prison (“JSP”) in Wrightsville,
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)
Bivins v. Dereisbail, No. 13-14561 (11th Cir. Mar.
13, 2014) (dismissing appeal as frivolous); (2) Bivins v.
Woods, 1:12-CV-162-WLS-TQL (M.D. Ga. Nov. 5, 2012)
(dismissed for failure to state a claim); and (3) Bivins
v. Concept, Inc., 7:95-CV-612 (N.D. Ala. June. 8, 1995)
(dismissed as frivolous); see also Bivins v.
Carswell, CV 318-086 (S.D. Ga. Feb. 14, 2019) (finding
Plaintiff has three strikes under § 1915(g) and did not
satisfy imminent danger exception); Bivins v.
Kellogg, 1:18-CV-0148 (M.D. Ga. Dec. 10, 2018) (finding
Plaintiff has three strikes under § 1915(g) but
satisfied imminent danger exception). 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.
Plaintiff Does Not Qualify for the Imminent Danger
alleges Defendants are officers at JSP who assaulted him on
May 20, 2019, and injured his lower back, left hip, left
shoulder, right elbow, and the area above his right eye.
(Doc. no. 1, pp. 6-14.) Plaintiff contends he meets the
imminent danger exception because he is “not receiving
adequate medical care for his injuries, ” and
“the Court will error if it does not permit [Plaintiff]
to proceed [IFP].” (Id. at 12.) In support of
this allegation, Plaintiff alleges on May 25, 2019, five days
after the assault, a prison physician, referred to as
“Dr. Brown, ” evaluated Plaintiff and reviewed a
“surgeon's medical consult.” (Id. at
12.) Dr. Brown explained to Plaintiff he suffered from a
degenerative back disease and resulting bone-on-bone
condition and pinching of nerves that was causing the
“temporary paralysis” Plaintiff experiences when
he lies on his back for a prolonged period of time.
(Id. at 13.) Dr. Brown expressed concern the assault
could have exacerbated Plaintiff's condition and ordered
an MRI. (Id.) Dr. Brown also referred Plaintiff to
an orthopedic surgeon. (Id.) On July 2, 2019,
Plaintiff was transferred from JSP to BSP. (Id.)
Plaintiff never explains whether the MRI was ever conducted.
Nor does he either describe the medical treatment received
since his transfer to BSP or allege prison officials at BSP
have failed to treat his condition. Plaintiff has not sued
any medical official. Instead, he sued the two officers who
allegedly assaulted him and seeks monetary damages.
(Id. at 15.)
allegations do not establish he faces an “imminent
danger of serious physical injury.” Mitchell,
873 F.3d at 874. As to the alleged attack by Defendants, an
allegation of past physical injury is insufficient to satisfy
the present imminent danger exception. Medberry, 185
F.3d at 1193. Plaintiff does not allege a present or future
risk of serious physical injury from Defendants, and he could
not do so in good faith because of his transfer to BSP.
Perhaps Plaintiff faces a present imminent danger of serious
physical injury because of ongoing deliberate indifference to
his serious medical needs at BSP. The Complaint provides no
factual basis for such a finding, and any such claim should
be brought in the Middle District of Georgia against prison
officials at BSP. Mitchell, 873 F.3d at 874.
Plaintiff fails to demonstrate he should be excused from
paying the full filing fee under the “imminent
danger” exception to § 1915(g)'s three strike
The Complaint Should Also Be Dismissed Because Plaintiff
Failed to Disclose His Prior Cases and His ...