Stanford v. Smith et al

Filing 4

ORDER denying 2 Motion for Leave to Proceed in forma pauperis and dismissing action without prejudice. Ordered by Judge Hugh Lawson on 3/23/2007. (nbp,HL)

Stanford v. Smith et al

Doc. 4

Case 5:07-cv-00104-HL-CWH

Document 4

Filed 03/23/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION RYAN JARROD STANFORD, : : Plaintiff : : vs. : : Warden HUGH SMITH, Deputy Warden : JOHN W. PAUL, and Mail Room : Supervisor VICKIE F. NAIL, : : Defendants : ____________________________________

NO. 5:07-CV-104 (HL) ORDER

Plaintiff RYAN JARROD STANFORD, an inmate at Georgia State Prison ("GSP") in Reidsville, Georgia, has filed the instant pro se civil rights action under 42 U.S.C. § 1983. He also seeks leave to proceed without prepayment of the filing fee or security therefor pursuant to 28 U.S.C. § 1915(a) (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

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Case 5:07-cv-00104-HL-CWH

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Filed 03/23/2007

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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 filed numerous civil rights or habeas corpus claims with federal courts while incarcerated. At present, at least nine of these cases have been dismissed as frivolous pursuant to 28 U.S.C. § 1915: Stanford v. Georgia Dep't of Corr., 1:06-CV-956(ODE) (N.D. Ga. May 15, 2006); Stanford v. Smith, 5:05-CV-288(WDO) (M.D. Ga. Feb. 3, 2006) (appeal dismissed as frivolous); Stanford v. United States District Court, Northern District of Ga, 5:05-CV-386(CAR) (M.D. Ga. Nov. 23, 2005); Stanford v. Smith, 6:05-CV-81(BAE) (S.D. Ga. Nov. 14, 2005); Stanford v. Smith, 6:05-CV-56(BAE) (S.D. Ga. Nov. 1, 2005)(both initial filing and appeal dismissed as frivolous); Stanford v. Head, 1:05-CV-1988(ODE) (N.D. Ga. Aug. 25, 2005); and Stanford v. Smith, 6:04-CV-149(BAE) (S.D. Ga. June 22, 2005) (both initial filing and appeal dismissed as frivolous). As plaintiff has nine 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's claims do not remotely approach allegations of "imminent danger of serious physical injury." Because plaintiff has nine 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 new complaint forms and the entire $350.00 filing fee at the time of filing the complaint. As the Eleventh Circuit stated in Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002), a prisoner cannot simply 2

Case 5:07-cv-00104-HL-CWH

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pay the filing fee after being denied in forma pauperis status; he must pay the filing fee at the time he initiates the suit. SO ORDERED, this 23rd day of March, 2007.

s/ Hugh Lawson HUGH LAWSON UNITED STATES DISTRICT JUDGE cr

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