HENDERSON v. BERNARD et al

Filing 4

ORDER OF DISMISSAL Dismissing Case as Frivolous - #2 MOTION for Leave to Proceed in forma pauperis (denied pursuant to three strikes provision of 1915(g)). Ordered by US DISTRICT JUDGE CLAY D LAND on 5/8/2024. (esl)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
TAVARRES HENDERSON 1

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Plaintiff,
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VS.
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TERRY BERNARD, et al.,
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Defendants.
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________________________________ :

NO. 4:24-CV-000056-CDL-MSH

ORDER OF DISMISSAL
Pro se Plaintiff Pro se Plaintiff Tavarres Henderson, a prisoner incarcerated at the
Rutledge State Prison in Columbus, Georgia, filed a complaint that has been docketed as
a 42 U.S.C. § 1983 civil rights complaint. ECF No. 1. Plaintiff seeks leave to proceed
in forma pauperis. ECF No. 2. However, Plaintiff has three strikes under the Prison
Litigation Reform Act, so he may not proceed in forma pauperis. Leave to proceed in
forma pauperis is therefore DENIED and this complaint is DISMISSED for the reasons
set forth below. Furthermore, because Plaintiff’s complaint does not state a right to any
recognizable relief and contains frivolous allegations, this action is DISMISSED WITH
PREJUDICE.
I. DISMISSAL PURSUANT TO 28 U.S.C. § 1915(g)

In the docketing of this case, Plaintiff’s first name was mistakenly spelled “Taverres”. A
review of the complaint and of the records on PACER reveals that Plaintiff’s first name is
actually spelled “Tavarres”. The Clerk of Court is DIRECTED to correct the spelling of
Plaintiff’s first name to “Tavarres” in the Court’s docket.
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Under 28 U.S.C. § 1915(g), a prisoner is barred 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.
This is known as the “three strikes provision.” A prisoner incurs a “strike” any time
he has a federal lawsuit or appeal dismissed on the grounds that it is (1) frivolous, (2)
malicious, or (3) fails to state a claim. See Medberry v. Butler, 185 F.3d 1189, 1192 (11th
Cir. 1999); see also Daker v. Comm’r, Ga. Dep’t of Corr., 820 F.3d 1278, 1283-84 (11th
Cir. 2016) (confirming that “these three grounds are the only grounds that can render a
dismissal a strike”). Once a prisoner incurs three strikes, his ability to proceed in forma
pauperis in federal court is greatly limited: leave to proceed in forma pauperis may not be
granted unless the prisoner is under imminent danger of serious physical injury. Medberry,
185 F.3d at 1192.
A review of court records on the Federal Judiciary’s Public Access to Court
Electronic Records (“PACER”) database reveals that Plaintiff has filed approximately
fifteen federal lawsuits and that at least three of his complaints or appeals have been
dismissed as frivolous, malicious, or for failure to state a claim. See, e.g., Henderson v.
Augusta Jud. Cir., 1:20-CV-175 (S.D. Ga. Dec. 22, 2020) (dismissed for failure to state
a claim); Henderson v. Mastny, 1:19-CV-017 (S.D. Ga. Feb. 7, 2019) (dismissed for
failure to state a claim); Henderson v. Mastny, No. 19-12222-K (11th Cir. Oct. 21, 2019)
(three-judge panel finding that appeal is frivolous and dismissing appeal); and
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Henderson v. Roundtree, 1:18-CV-063 (S.D. Ga. Apr. 3, 2018) (dismissed for failure to
state a claim). Furthermore, Plaintiff has repeatedly been identified as a “three-striker”
in subsequent suits. See e.g., Henderson v. Green, 3:23-CV-022 (S.D. Ga. Apr. 13,
2023); Henderson v. Foolks, 7:20-CV-210 (M.D. Ga. Dec. 7, 2020); Henderson v. Social
Security Administration, 1:20-CV-250 (N.D. Ga. Apr. 1, 2020).
Plaintiff is accordingly barred from prosecuting this action in forma pauperis
unless he is in imminent danger of serious physical injury. 28 U.S.C. § 1915(g). 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. App’x 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. See White v. State of Colo., 157 F.3d
1226, 1231 (10th Cir. 1998). The exception to § 1915(g) is to be applied only in “genuine
emergencies,” when (1) “time is pressing,” (2) the “threat or prison condition is real and
proximate,” and (3) the “potential consequence is serious physical injury.” Lewis v.
Sullivan, 279 F.3d 526, 531 (7th Cir. 2002).
Nowhere in Plaintiff’s complaint does he provide any specific or nonfrivolous facts
suggesting that he is in imminent danger of suffering any serious physical injury. As
such, Plaintiff will not be permitted to proceed in forma pauperis pursuant to § 1915(g),
and his Complaint should be dismissed without prejudice to his right to refile with prepayment of the full filing fee. See Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir.
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2002) (per curiam) (“[T]he proper procedure is for the district court to dismiss the
complaint without prejudice when it denies the prisoner leave to proceed in forma
pauperis pursuant to the three strikes provision of § 1915(g).”).
II. DISMISSAL AS FRIVOLOUS PURSUANT TO 28 U.S.C. § 1915A
Under 28 U.S.C. § 1915A(a), a federal court is required to conduct an initial
screening of a prisoner complaint “which seeks redress from a governmental entity or
officer or employee of a governmental entity.” Section 1915A(b) requires a federal court
to dismiss a prisoner complaint that is: (1) “frivolous, malicious, or fails to state a claim
upon which relief may be granted”; or (2) “seeks monetary relief from a defendant who is
immune from such relief.” A claim is frivolous when it appears from the face of the
complaint that the factual allegations are “clearly baseless” or that the legal theories are
“indisputably meritless.” Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993).

A

complaint fails to state a claim when it does not include “enough factual matter (taken as
true)” to “give the defendant fair notice of what the . . . claim is and the grounds upon
which it rests[.]” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (noting that
“[f]actual allegations must be enough to raise a right to relief above the speculative level,”
and that the complaint “must contain something more . . . than … a statement of facts that
merely creates a suspicion [of] a legally cognizable right of action”) (internal quotations
and citations omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining
that “threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice”). In making the above determinations, all factual allegations in
the complaint must be viewed as true. Brown v. Johnson, 387 F.3d 1344, 1347 (11th Cir.
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2004). Moreover, “[p]ro se pleadings are held to a less stringent standard than pleadings
drafted by attorneys and will, therefore, be liberally construed.” Tannenbaum v. United
States, 148 F.3d 1262, 1263 (11th Cir. 1998).
Here, Plaintiff names Terry Bernard of the Georgia Board of Pardons and Parole as
a Defendant. ECF No. 1 at 1 and 2. Plaintiff complains that on February 18, 2018, the
Defendant “did open five joint prisoner Bob Barker IRA head hodge time share thirty year
burial bonds under the Plaintiff Tavarres Henderson”. Id. at 2. Plaintiff claims this is
causing him pain and suffering. Id. Plaintiff “seeks relief & his freedom”. Id.
The liberal construction that applies to pro se pleadings cannot serve as a substitute
for establishing a cause of action, and if the Court determines that the factual allegations
in a complaint are “clearly baseless” the complaint should be dismissed as frivolous.
Neitzke v. Williams, 490 U.S. 319, 327 (1989). Examples of “clearly baseless” factual
allegations are those “describing fantastic or delusional scenarios.” Id. at 328; Denton v.
Harnandez, 504 U.S. 25, 32-33 (1992) (citing Neitzke, 490 U.S. at 325-28) (stating that a
court may dismiss a claim as factually frivolous if the facts alleged are clearly baseless,
fanciful, fantastic, or delusional).
The violations of which Plaintiff complains and the relief he seeks are predicated
upon allegations that are “fanciful, fantastic, irrational, and/or delusional.” See Porter v.
Governor of the State of Fla., 667 F. App’x 766, 767 (11th Cir. 2016) (citing Denton, 504
U.S. at 32-33). Thus, even when construed liberally and in his favor, Plaintiff’s complaint
is “without arguable merit either in law or fact”, fails to satisfy the minimal standards of
rationality required at the preliminary screening stage, and is subject to immediate
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dismissal. Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001); Gray v. U.S. Government,
540 F. App’x 916, 917 (11th Cir. 2013) (citing Denton, 504 U.S. at 32-33). Accordingly,
Plaintiff’s complaint is DISMISSED WITH PREJUDICE 2 as frivolous under 28 U.S.C.
§ 1915A(b)(1).
III. CONCLUSION
For the foregoing reasons, Plaintiff may not proceed in forma pauperis in this action
and this action is DISMISSED WITH PREJUDICE.
SO ORDERED and DIRECTED, this 8th day of May, 2024.
S/Clay D. Land
CLAY D. LAND, JUDGE
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF GEORGIA

The Court realizes that dismissal with prejudice under 28 U.S.C. § 1915A is “an extreme
sanction to be exercised only in appropriate cases.” Camp v. Oliver, 798 F.2d 434, 438
(11th Cir. 1986). This is an “appropriate case[].” Id. This case qualifies for such treatment
because Plaintiff’s allegations are “clearly baseless and without arguable merit in fact” and
are therefore frivolous under 28 U.S.C. § 1915A(b)(1). See Trevino v. Fla., 687 F. App'x
861, 862 (11th Cir. 2017); Jordan v. Central Intelligence Agency, No. 5:18-cv-455 (MTT),
ECF No. 4 (M.D. Ga. Dec. 5, 2018) (quoting Bey v. Sec’y, U.S. State Dep’t, 2018 WL
3135153, at *3 (M.D. Fla. 2018)). Furthermore, District courts have the inherent power to
dismiss sua sponte frivolous suits without giving notice to the parties. See Jefferson
Fourteenth Assocs. v. Wometco de Puerto Rico, Inc., 695 F2d 524, 526, 526 n.3 (11th Cir.
1983); Henry v. Fernandez-Rundle, 773 F. App'x 596, 597 (11th Cir. 2019); Davis v.
Kvalheim, 261 F. App’x 231, 235 (11th Cir. 2008)).

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