Opinion
5:22-cv-00170-MTT-CHW
07-05-2022
LAWRENCE R. SMITH, Plaintiff, v. GEORGIA DEPARTMENT OF CORRECTIONS, et al., Defendants.
RECOMMENDATION OF DISMISSAL
Charles H. Weigle United States Magistrate Judge.
Plaintiff Lawrence R. Smith, an inmate confined in Central State Prison in Macon, Georgia, filed a civil rights action under 42 U.S.C. § 1983 and moved to proceed in forma pauperis. ECF Nos. 1, 2, 4, 5. On preliminary review, it is RECOMMENDED that Plaintiff's motion to proceed in forma pauperis be DENIED and his complaint be DISMISSED WITHOUT PREJUDICE because Plaintiff has had more than three federal cases dismissed for reasons constituting strikes and has not alleged facts showing that he is in imminent danger of serious physical injury.
MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
Federal 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). Under § 1915(g), a prisoner incurs a “strike” any time a court dismisses the prisoner's federal lawsuit or appeal on the grounds that it is frivolous or malicious or fails to state a claim. See Medberry v. Butler, 185 F.3d 1189, 1192 (11th Cir. 1999). Once a prisoner incurs three strikes, a court may not grant him leave to proceed in forma pauperis unless the prisoner is in imminent danger of serious physical injury. Id.
Having reviewed court records on the Federal Judiciary's Public Access to Court Electronic Records (“PACER”) database, the Court finds that Plaintiff has filed at least three federal lawsuits or appeals that have been dismissed as frivolous or malicious or for failure to state a claim. See Smith v. Perdue, Case No. 1:05-cv-3213-CAP (N.D.Ga. Feb. 15, 2005) (dismissing as frivolous), Smith v. Internal Revenue Service, Case No. 5:05-cv-65-WTM (S.D. Ga. Oct. 17, 2005) (dismissing for failure to state a claim; appeal dismissed as frivolous); Smith v. Donald, Case No. 5:05-cv-45-WTM (S.D. Ga. Nov. 22, 2005) (dismissing for failure to state a claim). Because of this, Plaintiff 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 satisfy the “imminent danger” requirement, a prisoner must allege the existence of a present and imminent danger of serious physical injury. Id. General allegations that are not grounded in specific facts which indicate that serious physical injury is imminent are not sufficient to invoke the exception to § 1915(g). See Brown v. Johnson, 387 F.3d 1344, 1450 (11th Cir. 2004). A claim by a prisoner that he faced a past imminent danger is also not a sufficient basis to allow him to proceed in forma pauperis pursuant to the imminent danger exception. Medberry, 185 F.3d at 1193 (holding that the exception was not triggered where threat of assault by other prisoners ceased to exist when the plaintiff was placed in administrative confinement prior to filing his complaint).
In this case, Plaintiff alleges he “has a serious medical condition that causes him to have seizures.” ECF No. 1-1 at 4. Plaintiff fails to tell the Court what this “serious medical condition” is but states that due to this unspecified condition, he has a bottom bunk profile. Id. at 4-5. In March 2021, he was moved from the F-1 housing unit to the K-3 housing unit and was assigned a top bunk. Id. at 5. He complained and was moved to the K-4 housing unit, where he was still given a top bunk assignment. Id. Plaintiff had a seizure on September 29, 2021 at 9:30 pm while sleeping in the top bunk. Id. According to Plaintiff, “other inmates had to hold [him] so [he would not] fall off the bunk.” Id. Plaintiff alleges there were no correctional officers working at the time and that he was, therefore, denied medical attention. Id. at 5-6. Plaintiff filed a grievance and, according to Plaintiff, “the institution admitted” it was short-staffed and had no officers working in the housing units. Id. at 6. Plaintiff does not state what medical attention he required at the time or how he was affected by the alleged lack of medical care following the seizure.
Plaintiff states that he was moved to Building H due to his mental health issues. Id. He alleges that he is a “level 3” mental health inmate who requires “close supervision and treatment.” Id. Plaintiff states that there are no officers present in Building H during the day or night. Id. He states that on March 22, 2022 he had a seizure. Id. When Sergeant Green arrived to tell the inmates to get ready for inspection, Plaintiff reported his seizure to Green, who “laughed and slapped Plaintiff in his face.” Id. at 6-7.
Afterwards, a second officer arrived in Building H and told Plaintiff that Green wanted Plaintiff to be taken to the “cage” in Building G. Id. Plaintiff was taken to the “cage,” where he remained for “six hours without toilet and drinking water in the sun.” Id. Plaintiff alleges Green violated the Eighth Amendment by slapping him, failing to call medical, and having him placed in the “cage” for six hours. Id. at 12-13. Again, it is unclear what medical care Plaintiff needed following this seizure or how he was affected by the lack of medical attention.
Plaintiff states that the prison is short-staffed and might have only two correctional officers guarding more than one-thousand inmates. Id. at 7. He alleges that “his previously assigned dormitory,” Building K, houses approximately 248 inmates and “at times” only one guard is assigned to that dormitory. Id. at 9. During the time he is monitoring Building K, the same guard may be responsible for monitoring Building J, which has approximately 332 inmates. Id. The Court notes that Plaintiff is no longer assigned to Building K; he is in Building H. Id. at 6. Plaintiff states that “[d]uring the night shift there are no correctional officer[s] guarding any of the housing units ....” Id. at 9. He alleges that “seizures are [a] serious medical condition,” and he “is in imminent danger of receiving physical injuries including death because of his medical condition and the shortage of staff in order to get Plaintiff to medical in case he has seizures.” Id. at 78. According to Plaintiff, he also has migraines, back pain, and neck pain. Id. at 8.
Plaintiff makes the general allegation that all of the named Defendants have subjected him to a serious and unreasonable risk of harm due to unconstitutional conditions at Central State Prison, which includes overcrowding, understaffing, pervasive violence, inadequate training of officers, inadequate policies and procedures, improper classification, and failure to implement policies, procedures, and practices related to staffing and security. Id. at 8-9.
As noted above, to qualify for the “imminent danger” exception in § 1915(g), 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. Atty's Office., 334 Fed.Appx. 278, 279 (11th Cir. 2009) (per curiam) (citation and internal quotation marks omitted). Moreover, the plaintiff must allege more than a speculative or general risk. Id.
Plaintiff states he has seizures, but fails to tell the Court what medical condition he suffers, whether he is on medication to control the seizures, what medical care he requires following a seizure, or how he is affected by any alleged lack of medical care following a seizure. He “states purely conclusory assumptions about the possibility of injury occurring if he were to experience a seizure, but he gives no evidence as to the probability of this ever happening” May v. Howard, No. 13-0557-CG-C, 2014 W.L. 3428858, at *3 (S.D. Ala. July 14, 2014) (emphasis in original). While Plaintiff suffered two seizures over a six-month period, he does not allege that he suffered “serious physical injury” due to the seizures or any lack of medical care following the seizures.0F See Skillern v. Paul, 202 Fed.Appx. 343, 344 (11th Cir. 2006) (affirming dismissal of complaint when three-strike litigant failed to tell the court from what condition he suffered and failed to allege that he suffered any physical injury as a result of not receiving prescribed medication).
Plaintiff was housed in Building H, not K, when he filed his complaint. ECF No. 1 at 5-6. Thus his top-bunk assignment in Building K, the possibility that he may fall from the top bunk during a seizure, and the alleged lack of staff in Building K do not show that Plaintiff faced a likelihood of serious physical injury at the time he filed his complaint. Medberry, 185 F.3d at 1193.
Accordingly, it is now RECOMMENDED that Plaintiff's motion to proceed in forma pauperis be DENIED and that his complaint be DISMISSED WITHOUT PREJUDICE.1F
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.
OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1), Plaintiff may serve and file written objections to this recommendation with the district judge assigned to this case 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. 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 ORDERED and RECOMMENDED.