Lowrey v. Ozburn et al

Filing 4

ORDER denying 2 Motion for Leave to Proceed in forma pauperis; dismissing without prejudice 1 Motion for Writ of Mandamus. Ordered by Judge C. Ashley Royal on 4/12/11 (lap)***

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
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Plaintiff
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vs.
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Judge OZBURN, et al.,
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Defendants
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____________________________________
ANTHONY BLAKE LOWREY,

NO. 3:11-CV-48 (CAR)
ORDER

Pro se plaintiff ANTHONY BLAKE LOWREY, an inmate at the McEver Probation
Detention Center in Perry, Georgia, has filed a handwritten mandamus petition, and he seeks leave
to proceed in forma pauperis (Tab # 2).
Under the “three strikes” provision of the Prison Litigation Reform Act (“PLRA”), a prisoner
is generally precluded from proceeding in forma pauperis if at least three prior lawsuits or appeals
by the prisoner were dismissed as frivolous, malicious or failing to state a claim upon which relief
may be granted.

28 U.S.C. §1915(g).

Dismissal without prejudice for failure to exhaust

administrative remedies and dismissal for abuse of judicial process are also properly counted as
strikes. See Rivera v. Allin, 144 F.3d 719 (11th Cir. 1998). Section 1915(g) provides an exception
to the three strikes rule, under which an inmate may proceed in forma pauperis if he alleges he is
in “imminent danger of serious physical injury.” The prisoner must allege a present imminent
danger, as opposed to a past danger, to proceed under section1915(g)’s imminent danger exception.
Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999).
The Eleventh Circuit has upheld the constitutionality of section 1915(g) in concluding that
section 1915(g) does not violate an inmate’s right of access to the courts, the doctrine of separation

of powers, an inmate’s right to due process of law, or an inmate’s right to equal protection. Rivera,
144 F.3d at 721-27.
A review of court records on the U.S. District Web PACER Docket Report reveals that
plaintiff has reached the three “strikes” allowed by the PLRA to a prisoner attempting to proceed
in forma pauperis in a federal civil lawsuit. See Lowrey v. Barrow County, No. 09-11777-C (11th
Cir. May 29, 2009) (appeal dismissed as frivolous); Lowrey v. Barrow County, 2:08-CV-257-RWS
(N.D. Ga. Mar. 2, 2009) (complaint dismissed for failure to state a claim); and Lowrey v. Elliott,
3:07-CV-113 (CDL) (M.D. Ga. Jan. 6, 2009 (complaint dismissed for failure to state a claim).
As plaintiff has three strikes, he cannot proceed in forma pauperis in the instant case unless
he can show that he qualifies for the “imminent danger of serious physical injury” exception of
section 1915(g). Plaintiff complains about alleged improprieties in connection with his probation
revocation. Such allegations do not remotely constitute imminent danger of serious physical injury.
Because plaintiff has at least three prior strikes and is not under imminent danger of serious
injury, his request to proceed in forma pauperis is DENIED and the instant action is DISMISSED
WITHOUT PREJUDICE. If plaintiff wishes to bring a new civil rights action, he may do so by
submitting a new complaint form and the entire $350.00 filing fee. As the Eleventh Circuit held
in Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002), 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.
For plaintiff’s information, this Court does not have jurisdiction over mandamus actions with
respect to state officials. See Moye v. Clerk, DeKalb County Superior Court, 474 F.2d 1275,
1275-76 (5th Cir.1973) (finding that federal courts lack “the general power to issue writs of
mandamus to direct state courts and their judicial officers in the performance of their duties where

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mandamus is the only relief sought.”). Thus, this Court would dismiss plaintiff’s mandamus action
even if he paid the filing fee.
SO ORDERED, this 12th day of April, 2011.
S/ C. Ashley Royal
C. ASHLEY ROYAL, JUDGE
UNITED STATES DISTRICT COURT

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