United States District Court, M.D. Georgia, Macon Division
ORDER OF DISMISSAL
T. TREADWELL, JUDGE
Levi Arthur Fedd, an inmate in Ware State Prison in Waycross,
Georgia, has filed a pro se motion for a writ of
mandamus, Mot. for Writ of Mandamus, ECF No. 1, and a motion
for leave to proceed in forma pauperis. Mot. for
Leave to Proceed In Forma Pauperis, ECF No. 2. For
the reasons discussed below, Plaintiff's motion to
proceed in forma pauperis is
DENIED, and his motion for a writ of
mandamus is DISMISSED WITHOUT PREJUDICE. If
Plaintiff wants to proceed on his claims, he must file a new
action and pay the full $400.00 filing fee.
Motion to Proceed In Forma Pauperis
regard to a motion for leave to proceed in forma
pauperis, federal law prohibits a prisoner from bringing
a civil action in federal court in forma
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
frivolous or malicious or fails to state a claim.
Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir.
1999). If a prisoner incurs three strikes, his ability to
proceed in forma pauperis in federal court is
greatly limited: leave may not be granted unless the prisoner
alleges an “imminent danger of serious physical
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 or malicious or for failure
to state a claim. See, e.g., Order Dismissing
Appeal, Fedd v. Swanner, No. 16-11318-G (11th Cir.
June 30, 2017) (three-judge panel dismissing appeal as
frivolous); Order Dismissing Appeal, Fedd. v. Singh,
No. 16-11805 (11th Cir. Feb. 2, 2017) (three-judge panel
dismissing appeal as frivolous); Order Dismissing Compl.,
Fedd. v. Almedom, No. 5:15-cv-00104-MTT-CHW (M.D.
Ga. Feb. 12, 2016) ECF No. 48 (dismissing for failure to
state a claim and failure to exhaust). Petitioner 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,
1231-32 (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).
case, Plaintiff seeks an order directing that the State
provide him with a transcript of his trial so that he may use
it in a habeas corpus proceeding. Mot. for Writ of Mandamus,
ECF No. 1. Nothing in Plaintiff's petition suggests that
he is in imminent danger of serious physical injury. Thus,
because Plaintiff has not alleged facts demonstrating that he
was in imminent danger of serious physical injury when he
filed his complaint, Plaintiff's motion to proceed in
forma pauperis is DENIED.
Petitioner was permitted to proceed in forma
pauperis, his Petition would still be subject to
dismissal. Because Petitioner is a prisoner “seeking
redress from a governmental entity or [an] officer or
employee of a governmental entity, ” the Court is
required to conduct a preliminary screening of his Complaint.
See 28 U.S.C. § 1915A(a). When conducting a
preliminary screening under 28 U.S.C. § 1915A, the Court
must accept all factual allegations in the complaint as true.
Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir.
2006). 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 Court must dismiss a prisoner complaint if it
“(1) is frivolous, malicious, or fails to state a claim
upon which relief may be granted; or (2) seeks monetary
relief from a defendant who is immune from such
relief.” 28 U.S.C. § 1915A(b).
is frivolous if it “lacks an arguable basis either in
law or in fact.” Miller v. Donald, 541 F.3d
1091, 1100 (11th Cir. 2008) (internal quotation marks
omitted). The Court may dismiss claims that are based on
“indisputably meritless legal” theories and
“claims whose factual contentions are clearly
baseless.” Id. (internal quotation marks
omitted). A complaint fails to state a claim if it does not
include “sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)).
petition, Petitioner seeks an order requiring the State of
Georgia to provide him with hearing transcripts from his
criminal trial. Even when liberally construed,
Petitioner's application does not seek relief available
from this Court, as the United States District Courts do not
have the authority to issue writs compelling action by state
officials in the performance of their duties. See Moye v.
Clerk, DeKalb Cnty. Superior Court, 474 F.2d 1275, 1276
(5th Cir. 1973) (per curiam); see also Lawrence v.
Miami-Dade Cnty. State Attorney Office, 272 Fed.Appx.
781, 781 (11th Cir. 2008) (per curiam) (“Because the
only relief [petitioner] sought was a writ of mandamus
compelling action from state officials, not federal
officials, the district court lacked jurisdiction to grant
relief and did not err in dismissing the petition.”)
Accordingly, this Petition is subject to dismissal pursuant
to 28 U.S.C. § 1915A(b).