United States District Court, M.D. Georgia, Valdosta Division
RECKO M. ELLIS, Plaintiff,
THOMAS COUNTY GEORGIA, et al., Defendants.
LAWSON, SENIOR JUDGE
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.
Dismissal Pursuant to 28 U.S.C. § 1915(g)
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.
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).
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 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.
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.
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
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
Dismissal Pursuant to 28 U.S.C. § 1915A
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