United States District Court, S.D. Georgia, Statesboro Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE.
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. 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.
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.
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
Dismissal Under 28 U.S.C. § 1915(g)
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
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
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
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). Additionally, Plaintiff has