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Bivins v. Scott

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

August 22, 2019

WILLIE SAM BIVINS, Plaintiff,
v.
CERT. OFFICER SCOTT and CERT. OFFICER KLEMONS, Defendants.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BKIAN K. EPFS UNITED STATES MAGISTRATE JUDGE

         Plaintiff, 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.

         I. BACKGROUND

         A 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.

         “This 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.

         II. DISCUSSION

         A. Dismissal Is Warranted Because Plaintiff Has Three Strikes Under § 1915(g)

         A 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. 2017).

         B. Plaintiff Does Not Qualify for the Imminent Danger Exception

         Plaintiff 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.)

         Plaintiff's 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.

         Accordingly, 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 rule.

         C. The Complaint Should Also Be Dismissed Because Plaintiff Failed to Disclose His Prior Cases and His ...


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