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Ellis v. Thomas County Georgia

United States District Court, M.D. Georgia, Valdosta Division

August 26, 2019

RECKO M. ELLIS, Plaintiff,
v.
THOMAS COUNTY GEORGIA, et al., Defendants.

          ORDER

          HUGH LAWSON, SENIOR JUDGE

         Plaintiff Recko M. Ellis, a prisoner who was most recently incarcerated at the Riverbend Correctional Facility in Milledgeville, Georgia, has filed a document that has been construed as a pro se Complaint seeking relief pursuant to 42 U.S.C. § 1983 (ECF No. 1) and an affidavit in support thereof (ECF No. 4). Plaintiff has also failed to pay the Court's filing fee, and thus the Court presumes that Plaintiff intends to proceed in this action in forma pauperis. As discussed below, Plaintiff has three strikes under the Prison Litigation Reform Act, so he may not proceed in forma pauperis. Furthermore, Plaintiff's pleading is frivolous and fails to state an actionable claim. The Court therefore declines to permit Plaintiff to proceed in forma pauperis, and this case is DISMISSED without prejudice.

         I. Dismissal Pursuant to 28 U.S.C. § 1915(g)

         Federal law bars a prisoner from bringing a civil action in federal court in forma pauperis

if [he] 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.

28 U.S.C. § 1915(g). This is known as the “three strikes provision.” Under § 1915(g), a prisoner incurs a “strike” any time he has a federal lawsuit or appeal dismissed on the grounds that it is (1) frivolous, (2) malicious, or (3) fails to state a claim. See Medberry v. Butler, 185 F.3d 1189, 1192 (11th Cir. 1999); see also Daker v. Comm'r, Ga. Dep't of Corr., 820 F.3d 1278, 1283-84 (11th Cir. 2016) (confirming that “these three grounds are the only grounds that can render a dismissal a strike”). Once a prisoner incurs three strikes, his ability to proceed in forma pauperis in federal court is greatly limited: leave to proceed in forma pauperis may not be granted unless the prisoner is under imminent danger of serious physical injury. Medberry, 185 F.3d at 1192.

         A review of court records on the Federal Judiciary's Public Access to Court Electronic Records (“PACER”) database reveals that Plaintiff has filed multiple federal lawsuits and that at least three of his complaints or appeals have been dismissed as frivolous, malicious, or for failure to state a claim. See, e.g., Order Dismissing Compl., Ellis v. Cain, ECF No. 6 in No. 7:07-cv-00093-HL-RLH (M.D. Ga. Aug. 14, 2007) (dismissing as frivolous); See, e.g., Order Dismissing Compl., Ellis v. Dees, ECF No. 8 in No. 7:07-cv-00094-HL-RLH (M.D. Ga. Aug. 14, 2007) (dismissing as frivolous); See, e.g., Order Dismissing Compl., Ellis v. ABL Food Surv., ECF No. 4 in No. 7:07-cv-00008-HL-RLH (M.D. Ga. Jan. 23, 2007) (dismissing as frivolous). Plaintiff is accordingly barred from prosecuting this action in forma pauperis unless he is in imminent danger of serious physical injury. 28 U.S.C. § 1915(g).

         To qualify for this exception, a prisoner must allege specific facts that describe an “ongoing serious physical injury, ” or “a pattern of misconduct evidencing the likelihood of imminent serious physical injury.” Sutton v. Dist. Attorney's Office, 334 Fed.Appx. 278, 279 (11th Cir. 2009) (per curiam) (internal quotation marks omitted). Complaints of past injuries are not sufficient. See Medberry, 185 F.3d at 1193. Vague and unsupported claims of possible dangers likewise do not suffice. See White v. State of Colo., 157 F.3d 1226, 1231 (10th Cir. 1998). The exception to § 1915(g) is to be applied only in “genuine emergencies, ” when (1) “time is pressing, ” (2) the “threat or prison condition is real and proximate, ” and (3) the “potential consequence is serious physical injury.” Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002).

         As best as the Court can tell, Plaintiff's claims arise from his present incarceration. Compl. 1, ECF No. 1. In his “Averment of the Facts, ” Plaintiff generally asserts that he has been unlawfully imprisoned because “he was never in a lawful, binding contract with the state of Georgia, the United States Government Corporation or the Social Security Administration” and therefore never consented “to become a 14th Amendment citizen state citizen or any other corporate citizen or person subjected to codes, rules, regulations, statutes, acts or any other jurisdiction outside of the U.S. Constitution.” Attach. 1 to Compl. 1, ECF No. 1-1. Plaintiff contends that the State of Georgia opened “a fictional company in the Plaintiff name without his written prior consent” in order to acquire jurisdiction over his person. Id. Plaintiff therefore submits that he is a “private person” not legally subject to the jurisdiction of the law under which he is currently incarcerated; thus, his arrest warrant, indictment, and final judgment are all unlawful. Id. at 1-2; see also Compl. 4, ECF No. 1.

         The Court has reviewed each of Plaintiff's submissions in this case and finds no allegations sufficient to entitle Plaintiff to the imminent danger exception of 28 U.S.C. § 1915(g). Plaintiff submits that he is in “grave danger” because various laws, including the Banking Relief Act, made “every citizen of the United States . . . an enemy of the government.” Aff. 3, ECF No. 2. Plaintiff thus posits that Defendants “may attemp[t] to kidnap the Plaintiff or take the Plaintiff against his will threw [sic] force or may attemp[t] to kill the Plaintiff as well if he choose[s] not to comply to the State of Georgia colorable corporate laws.” Id. at 2-3.

         The Court is not required to “accept any and all allegations of injury as sufficient to forestall application of 28 U.S.C. § 1915(g), ” however. Gibbs v. Cross, 160 F.3d 962, 967 (3d Cir. 1998). A district court may “discredit[] factual claims of imminent danger that are ‘clearly baseless,' i.e., allegations that are fantastic or delusional and rise to the level of the ‘irrational or wholly incredible.'” Id. (quoting Denton v. Hernandez, 504 U.S. 25, 32 (1992)). Plaintiff has not pleaded any specific facts showing that any Defendant-or any other person-has actually used any force against him or threatened to do so in the future. Such “vague statements” cannot “satisfy the dictates of § 1915(g).” Skillern v. Paul, 202 Fed.Appx. 343, 344 (11th Cir. 2006) (per curiam). More to the point, however, Plaintiff's allegations of “imminent danger” are baseless and irrational, and the Court need not take them at face value. See, e.g., Rittner v. Kinder, 290 Fed.Appx. 796, 798 (6th Cir. 2008) (allegations of “threats” and “intimidation” insufficient to show plaintiff was in imminent danger where examples of such threats did not constitute threats of physical injury, were described with insufficient facts and detail, or were irrational or incredible).

         Because Plaintiff's allegations do not demonstrate that he is in imminent danger of serious physical injury, Plaintiff will not be permitted to proceed in forma pauperis pursuant to § 1915(g). His Complaint shall accordingly be dismissed without prejudice to his right to refile with pre-payment of the full $400 filing fee. See Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (per curiam) (“[T]he proper procedure is for the district court to dismiss the complaint without prejudice when it denies the prisoner leave to proceed in forma pauperis pursuant to the three strikes provision of § 1915(g).”).

         II. Dismissal Pursuant to 28 U.S.C. § 1915A

         Even assuming arguendo that Plaintiff could proceed with this action despite the § 1915(g) bar, Plaintiff's claims would still be subject to dismissal pursuant to 28 U.S.C. § 1915A. In accordance with the Prison Litigation Reform Act (“PLRA”), the district courts are obligated to conduct a preliminary screening of every complaint filed by a prisoner who seeks redress from a government entity, official, or employee. See 28 U.S.C. § 1915A(a). When conducting preliminary screening, the Court must accept all factual allegations in the complaint as true. Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006); Hughes v. Lott, 350 F.3d 1157, 1159-60 (11th Cir. 2003). Pro se pleadings, like the one in this case, are “held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed.” Id. (internal quotation marks omitted). Still, the ...


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