Opinion
5:23-cv-00315-TES-CHW
11-02-2023
MARCUS ANTHONY TERRELL, Plaintiff, v. WARDEN SEALS, et al., Defendants.
RECOMMENDATION OF DISMISSAL
Charles H. Weigle United States Magistrate Judge
Plaintiff Marcus Anthony Terrell, an inmate in Dooly State Prison in Unadilla, Georgia, has filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983. Compl., ECF No. 1. Plaintiff has also filed a motion for leave to proceed in this action in forma pauperis. Mot. for Leave to Proceed In Forma Pauperis, ECF No. 3. For the reasons discussed below, it is RECOMMENDED that Plaintiff's motion for leave to proceed in forma pauperis be DENIED and that Plaintiff's complaint be DISMISSED WITHOUT PREJUDICE pursuant to the three strikes rule. In light of this recommendation, it is also RECOMMENDED that Plaintiff's pending motion for a preliminary injunction be DENIED AS MOOT.
MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
Any court of the United States may authorize the commencement a civil action, without prepayment of the required filing fee (in forma pauperis), if the plaintiff shows that he is indigent and financially unable to pay the court's filing fee. See 28 U.S.C. § 1915(a). Nevertheless, the Prison Litigation Reform Act (“PLRA”) prohibits 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 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 injury.” Id.
A review of court records on the Federal Judiciary's Public Access to Court Electronic Records (“PACER”) database reveals that Plaintiff has filed several lawsuits in federal court and that three of his appeals have been dismissed as frivolous. See Terrell v. Caldwell, Case No. 21-13107-F (11th Cir. 2022) (dismissing appeal as frivolous); Terrell v. Warden, Case No. 20-12285 (11th Cir. 2021) (same); Terrell v. Mun. Corp. of Gwinnett, Case No. 17-11734-H (11th Cir. 2017) (same). Therefore, Plaintiff has three strikes and may not proceed in forma pauperis unless he can show that he qualifies for the “imminent danger” exception in § 1915(g). Medberry, 185 F.3d at 1193.
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. White v. State of Colorado, 157 F.3d 1226, 1231 (10th Cir. 1998). The exception is only to be applied in “genuine emergencies,” when (1) “time is pressing,” (2) the “threat or prison condition is real and proximate,” and (3) the “potential consequence is a serious physical injury.” Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002).
In the complaint, Plaintiff alleges three specific incidences when he was assaulted by prison officials in March 2023. Compl. 5, 7-8, 11, ECF No. 1. Plaintiff also asserts that, in March, he was threatened by a captain and a deputy warden who stated that he would “go missing” if he came to the “flat-top,” an area where many activities are held. Id. at 9. In a memorandum in support of his complaint, Plaintiff asserts that, because of this threat, he did not go to the flat-top for the “next 2 or 3 months.” Mem. 6, ECF No. 4. Plaintiff filed the complaint in this case in August 2023, five months after the assaults and threat purportedly occurred. See Compl. 6, ECF No. 1.
Plaintiff suggests in his complaint that he continues to be in danger, both from officials and from other inmates, because he has been charged with a sexual offense and because a rumor was spread within the prison that he had been masturbating in a prison bathroom, causing him to be labeled as “weird.” Id. at 8-9. Additionally, Plaintiff asserts that there is a policy within the prison for him to be mistreated and subjected to violence. Id. at 11. These assertions are vague and conclusory, without supporting factual allegations to show that Plaintiff is actually in danger. Plaintiff does not refer to any violence or specific threats against him that occurred after April 2023.
Plaintiff alleges he was kicked out of the dorm on two occasions, but he does not provide any specific information about these events to show that they support his claim of imminent danger. Id. at 8-9, 12. Notably, Plaintiff does not describe any actual or threatened violence. See id. As to one of those occasions, Plaintiff asserts that he was kicked out of the dorm in April 2023, but he says that he had packed all his belongings and put them by the door for two days. Id. at 12. Plaintiff does not assert any facts concerning the manner in which he was kicked out of the dorm that would demonstrate a risk of harm. See id.
Finally, Plaintiff alleges that he has several untreated medical conditions, including a stroke that went unattended. Id. at 10, 12. It appears, however, that this stroke occurred at a previous prison. See id. Plaintiff provides no information about what happened, how he knows a stroke occurred, or what he has done to try to get treatment for his condition and does not set forth any facts showing a continued risk of harm from this or any of the other health conditions that he mentions. See generally id.
Plaintiff filed a memorandum in support of his complaint, in which he reiterates the claims made in the complaint and asserts additional facts that appear to be related to incidents that occurred at other prisons where Plaintiff has been incarcerated. See generally Mem., ECF No. 4. These past incidents at other facilities do not show that Plaintiff was in imminent danger of serious physical injury when this complaint was filed.
Because Plaintiff's allegations do not demonstrate an imminent danger of serious physical injury, it is now RECOMMENDED that Plaintiff's motion for leave to proceed in forma pauperis be DENIED and that his complaint be DISMISSED WITHOUT PREJUDICE. In light of this recommendation, it is further RECOMMENDED that Plaintiff's motion for a preliminary injunction be DENIED AS MOOT.
In Dupree v. Palmer, 284 F.3d 1234 (11th Cir. 2002), the Eleventh Circuit held that a prisoner cannot simply pay the filing fee after being denied in forma pauperis status, he must pay the filing fee at the time he initiates the suit. Thus, the proper procedure when denying in forma pauperis status is to dismiss the complaint without prejudice, allowing the Plaintiff to refile upon payment of the full $402.00 filing fee.
In this motion, Plaintiff seeks a default judgment against the defendants for failing to answer the complaint. Because Plaintiff is a prisoner seeking to proceed in forma pauperis against government officials, his complaint is subject to a preliminary review. 28 U.S.C. § 1915(e)(2); 128 U.S.C. § 1915A. At this stage, no defendant has been served with Plaintiff's complaint, and thus, even if Plaintiff were allowed to proceed in this action in forma pauperis, denial of this motion would still be appropriate.
RIGHT TO FILE OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1), Plaintiff may serve and file written objections to this recommendation with the district court judge to whom this case is assigned within FOURTEEN (14) DAYS of his being served with a copy of this Order. Plaintiff may seek an extension of time in which to file written objections or amendments, provided a request for an extension is filed prior to the deadline for filing written objections. Any objection is limited in length to TWENTY (20) PAGES. See M.D. Ga. L.R. 7.4. Failure to object in accordance with the provisions of § 636(b)(1) waives the right to challenge on appeal the district judge's order based on factual and legal conclusions to which no objection was timely made. See 11th Cir. R. 3-1.
SO RECOMMENDED, this 2nd day of November, 2023.