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Gaither v. State

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

January 16, 2020

RUSSELL GAITHER, Plaintiff,
v.
STATE OF GEORGIA, Defendant.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, who is currently incarcerated at Georgia State Prison in Reidsville, Georgia, filed this action pursuant to 42 U.S.C. §1983 in the United States District Court for the District of Nebraska. Doc. 1. Plaintiff was permitted to proceed in forma pauperis by order of the Nebraska court. Doc. 10. For the reasons which follow, I RECOMMEND the Court VACATE the order granting Plaintiff's Motion to Proceed in Forma Pauperis and ordering the collection and remittance of funds, doc. 10, and DENY Plaintiff's Motion to Proceed in Forma Pauperis, doc. 2. For these same reasons, I RECOMMEND the Court DISMISS Plaintiff's Complaint, without prejudice, DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal, and DENY Plaintiff leave to proceed in forma pauperis on appeal.[1] I also RECOMMEND the Court DENY as moot any and all pending Motions and requests for relief Plaintiff filed in this action, docs. 4, 5, 20, 21, 22, 23, 24, 26, 27, 29, 31, 32.

         BACKGROUND

         Plaintiff filed this action, generally alleging negligence and violations of the Eighth Amendment with respect to his medical care and violations of the Due Process Clause stemming from his confinement in segregation. Doc. 1 at 1. However, the majority of Plaintiff's Complaint consists of a recitation of the proceedings of a civil case he filed in the Superior Court of Wheeler County, Georgia. See generally Doc. 1. Plaintiff does not appear to elaborate on his due process claim in his Complaint, and as to his medical claim, he only states he underwent surgery to remove hardware from his ankle on October 22, 2018, and that his ankle is still “very badly swollen.” Id. at 7. Plaintiff also complains that Georgia State Prison failed to provide him with sufficient “indigent supplies” like paper and envelopes. Id. at 2.

         On April 24, 2019, the Nebraska District Court ordered Plaintiff's case be transferred to this District due to improper venue. Doc. 11. Plaintiff, thereafter filed a Notice of Appeal, purportedly challenging the transfer. Doc. 14. The Eleventh Circuit Court of Appeals, sua sponte, dismissed Plaintiff's appeal for lack of jurisdiction, doc. 28, and denied Plaintiff's motion for reconsideration, doc. 33. This Court now considers whether Plaintiff may proceed with this action.

         DISCUSSION

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

         A prisoner seeking to proceed in forma pauperis in a civil action against officers or employees of government entities must comply with 28 U.S.C. § 1915 of the Prison Litigation Reform Act of 1995 (“PLRA”). Section 1915(g) 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.

§ 1915(g). Section 1915(g) “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), abrogated on other grounds by Jones v. Bock, 549 U.S. 199 (2007). The Eleventh Circuit upheld the constitutionality of § 1915(g) in Rivera v. Allin, concluding that § 1915(g) does not violate the doctrine of separation of powers, nor does it violate an inmate's rights to access to the courts, to due process of law, or to equal protection. Rivera, 144 F.3d at 723-28.

         A review of Plaintiff's history of filings reveals he has brought at least three civil actions that were dismissed and constitute strikes under § 1915(g):

1) Gaither v. Chapman, No. 3:13-cv-125 (M.D. Ga. Dec. 9, 2013), ECF No. 5 (dismissed for failure to state a claim);
2) Gaither v. Pullin, No. 5:14-cv-260 (M.D. Ga. Aug. 21, 2014), ECF No. 6 (dismissed for being frivolous, malicious, or failing to state a claim); and
3) Gaither v. Archar, 3:15-cv-43 (S.D. Ga. Aug. 25, 2015), ECF No. 27 (dismissed for failure to follow court order and abuse of judicial process).[2] Additionally, Plaintiff has been ...

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