Moss v. Bottom et al

Filing 3

ORDER Denying Plaintiff's request to proceed in forma pauperis and Dismissing this action without prejudice. Ordered by Judge C. Ashley Royal on 8/26/10. (lap)

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION HENRY MARVIN MOSS, : : Plaintiff : : vs. : : Officer BOTTOM, et al., : : Defendants : ____________________________________

NO. 5:10-cv-304 (CAR) ORDER

Plaintiff HENRY MARVIN MOSS, an inmate at Hancock State Prison in Unadilla, Georgia, has filed a pro se civil rights complaint under 42 U.S.C. § 1983. Parties instituting nonhabeas civil actions are required to pay a filing fee of $350.00. 28 U.S.C. § 1914(a). Because plaintiff has failed to pay the required filing fee, the Court assumes that he wishes to proceed in forma pauperis in this action. 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 reveals that plaintiff has a prolific filing history.1 As plaintiff has more than 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's claims arise out of his prior confinement at Augusta State Medical Prison ("ASMP"). Specifically, plaintiff states that on June 2, 2010, defendant Officer Bottom handcuffed plaintiff, pushed him to the ground, "snatched" plaintiff up by the handcuffs, and "rammed" plaintiff into an exercise rack. Plaintiff further states that defendant Officer Bussey put her forearm against plaintiff's neck. Even if plaintiff were still confined at ASMP, the above claims, standing alone, would not constitute "imminent danger of serious physical injury." Moreover, situations that plaintiff may have faced at a prison where he was previously confined do not support imminent danger with respect to his current confinement. See e.g., Medberry, 185 F.3d at 1993. Because plaintiff has more than 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 new co mplaint 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 pay the filing fee after being denied in forma pauperis status; he must pay the filing fee at
At present, at least six of plaintiff's complaints or appeals have been dismissed as frivolous pursuant to 28 U.S.C. § 1915: Moss v. Miller, 1:98-cv-66 (WLS) (M.D. Ga.) (appeal); Moss v. Superior Ct. of Dougherty Co., 1:95-cv-222 (WLS) (M.D. Ga. Dec. 8, 1995) (complaint); Moss v. Kelley, 1:95-cv-197 (WLS) (M.D. Ga. Oct 31, 1995) (complaint); Moss v. State of Georgia, 1:94-cv-3360-FMH (N.D. Ga. Feb. 16, 1995) (complaint); Moss v. Priddy, 1:94-cv-9 (WLS) (M.D. Ga. Jan. 28, 1994) (complaint); and Moss v. Williams, 1:94-cv-8 (WLS) (M.D. Ga. Jan. 31, 1994) (complaint).
1

2

the time he initiates the suit. Moreover, as this Court has previously instructed plaintiff, if he wishes to bring a section 1983 arising out of events occurring at ASMP, he must file his complaint with the District Court in Southern District of Georgia, not this Court. SO ORDERED, this 26th day of August, 2010. S/ C. Ashley Royal C. ASHLEY ROYAL, JUDGE UNITED STATES DISTRICT COURT

cr

3