HOWARD v. BECIDDY et al

Filing 6

ORDER DENYING 3 Motion for Leave to Proceed in forma pauperis, DISMISSING WITHOUT PREJUDICE 1 , and DENYING AS MOOT 2 Motion to Appoint Counsel. Ordered by Judge Marc Thomas Treadwell on 11/13/2012. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
CECIL HOWARD a/k/a ALONZO
WHITEHEAD,

:
:
:
Plaintiff
:
:
VS.
:
:
Officer BECIDDY, et al.,
:
:
Defendants
:
________________________________:

NO. 5:12-CV-399 (MTT)
ORDER

On October 9, 2012, Plaintiff CECIL HOWARD a/k/a ALONZO WHITEHEAD
filed the instant pro se civil rights complaint under 42 U.S.C. § 1983. Plaintiff has
requested leave to proceed in forma pauperis.
By Order dated September 24, 2012, the Court dismissed without prejudice a
substantially similar lawsuit, Whitehead v. Beceddy, et al., 5:12-CV-370 (CAR)
(“Whitehead I”), because Plaintiff had incurred “three strikes” and failed to allege
imminent danger of serious physical injury. See 28 U.S.C. § 1915(g).1 Plaintiff’s claims
in Whitehead I were based up an alleged assault by Defendant Officers Beciddy and
Glenn and Defendant Lieutenant West, which occurred on May 11, 2012, and Plaintiff
1

Under section1915(g), the “three strikes rule” of the Prison Litigation Reform Act, “in no
event” shall a prisoner bring an in forma pauperis civil action or appeal:
if the prisoner 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.

being denied an MRI scan and pain medication for severe headaches resulting from his
injuries. The Court concluded that, when Plaintiff filed his complaint on September 17,
2012, he was not under a present imminent danger as a result of the May assault and
that his mere allegation of severe headaches did not satisfy this exception to the three
strikes rule.
In the instant lawsuit, Plaintiff complains that the above three Defendants have
attempted to “turn[] a dorm full of inmates” against Plaintiff and have retaliated against
him by filing a false disciplinary report and placing Plaintiff in isolation since September
4, 2012. Plaintiff alleges that he has scars on his wrists from being handcuffed in the
May incident and received a gash on his wrists in being handcuffed on September 4th.
Plaintiff continues to complain of head pain, although he has received an MRI scan.
He seeks only monetary damages.
To qualify for the “imminent danger” exception to the three strikes rule, Plaintiff
must make “specific fact allegations of ongoing serious physical injury, or of a pattern
of misconduct evidencing the likelihood of imminent serious physical injury.” Brown v.
Johnson, 387 F.3d 1344, 1350 (11th Cir. 2004) (citing Martin v. Shelton, 319 F.3d
1048, 1050 (8th Cir. 2003)). The “imminent danger” must be present at the time the
complaint is filed, not merely at a prior time. Medberry v. Butler, 185 F.3d 1189, 1193
(11th Cir.1999); see also Heimermann v. Litscher, 337 F.3d 781, 782 (7th Cir.2003)
(imminent danger present where a “genuine emergency” exists and “time is pressing”).
The Court has carefully considered the additional allegations made by Plaintiff in
the instant complaint and concludes that he continues to fail to allege that he was in
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“imminent danger of serious physical injury” when he filed it. Even if Defendants
Beciddy, Glenn, and West retaliated against or otherwise harassed Plaintiff by filing a
false disciplinary report and placing Plaintiff in isolation, such actions do not pose a
threat of serious physical injury. Similarly, even if these Defendants attempted to turn
other inmates against Plaintiff, he make no specific allegations supporting his actually
being in imminent danger as a result. Indeed, Plaintiff being confined in isolation
suggests that he was not under threat of physical injury from other inmates when he
filed his complaint. There is no indication that Plaintiff’s physical condition has
deteriorated since he filed his complaint in Whitehead I, and he has received the MRI
scan he therein said was needed. In any event, none of the Defendants appears to
have been involved in the denial of medical care to Plaintiff.
Based upon the foregoing, Plaintiff’s request to proceed in forma pauperis is
DENIED and the instant action is DISMISSED WITHOUT PREJUDICE. If Plaintiff
wishes to pursue the claims raised herein or in Whitehead I, he must file a new lawsuit
and pay this Court’s $350 filing fee in full.2
Plaintiff’s motion for appointment of counsel is DENIED AS MOOT.
SO ORDERED, this 13th day of November, 2012.

S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

2

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 the time he initiates the suit.
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