ALLAH v. GRAMIAK et al

Filing 10

ORDER ADOPTING 5 Report and Recommendations. The Plaintiff's retaliation and discrimination claims, his claims against Sachdiva and Lewis, and his claim for injunctive relief against Tyndal are DISMISSED without prejudice. Ordered by Judge Marc Thomas Treadwell on 7/16/2013. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
ALLAH QUDDOOS ALLAH a/k/a
ELIJAH THOMAS,
Plaintiff,
v.
Warden TOM GRAMIAK, et al.,
Defendants.

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CIVIL ACTION NO. 5:13-CV-186 (MTT)

ORDER
Before the Court is the Recommendation of United States Magistrate Judge
Stephen Hyles. (Doc. 5). The Magistrate Judge recommends dismissing the Plaintiff’s
claims of retaliation, racial or religious discrimination, or improprieties in the grievance
process because they do not satisfy the “imminent danger” standard required of “three
strikes”1 prisoners seeking to proceed in forma pauperis. Additionally, the Magistrate
Judge recommends dismissing claims against Defendants Sachdiva and Lewis based
on the Plaintiff’s failure to sufficiently allege their participation in denying him a working
CPAP machine. Also, the Magistrate Judge recommends dismissing the Plaintiff’s
claims for injunctive relief against Defendant Tyndal because she no longer is employed
at the prison.

1
Under the “three strikes” provision of the Prison Litigation Reform Act, a prisoner is generally
precluded from proceeding IFP 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).

The Plaintiff objects to the Recommendation. (Doc. 9). Pursuant to 28 U.S.C.
§ 636(b)(1), the Court has considered the Plaintiff’s objection and made a de novo
determination of the portions of the Recommendation to which he objects. The Plaintiff
cannot proceed in forma pauperis on his retaliation claim because he faces no imminent
danger in that regard. As to his claims against Defendants Sachdiva and Lewis, they
are not sufficiently pled. The Plaintiff’s objection suggests additional facts may exist
that illuminate these Defendants’ specific roles in denying him access to a working
CPAP machine. However, an objection is not the appropriate means for presenting
additional allegations, and if such facts do exist, the Plaintiff should file an amended
complaint. Finally, the Plaintiff’s claim for injunctive relief against Defendant Tyndal is
rendered moot by her retirement from the prison.
Accordingly, the Court ADOPTS the Recommendation and makes it the ORDER
of this Court. The Plaintiff’s retaliation and discrimination claims, his claims against
Sachdiva and Lewis, and his claim for injunctive relief against Tyndal are DISMISSED
without prejudice.
SO ORDERED, this 16th day of July, 2013.

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

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