SPIVEY v. USP BEAUMONT et al

Filing 4

ORDER: Plaintiff's 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 a new complaint form and the full filing fee. Ordered by U.S. District Judge MARC THOMAS TREADWELL on 9/26/2014. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
MANDRIEZ RAMON SPIVEY,

:
:
Plaintiff,
:
:
VS.
:
:
USP BEAUMONT, et al.,
:
:
Defendants.
:
_________________________________

CASE NO. 5:14-CV-309-MTT

ORDER
Pro se Plaintiff Mandriez Spivey, who is presently confined at the United States
Penitentiary (“USP”) Beaumont in Beaumont, Texas,1 has filed a complaint in which he
lists USP Beaumont, Medical Health Provider John/Jane Doe, Darrell Johnson, and
Kersa Taylor as Defendants. (Doc. 1.) Plaintiff, however, failed to file a motion to
proceed in forma pauperis or pay the filing fee in this case.
Nevertheless, the “three strikes rule” of the Prison Litigation Reform Act, codified
at 28 U.S.C. § 1915(g), states that “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.
The Eleventh Circuit has upheld the constitutionality of § 1915(g) in concluding that the
provision does not violate an inmate’s right of access to the courts, the doctrine of
1

Plaintiff pled guilty in this Court to one count of possession of a firearm by a convicted felon
and was sentenced to eighty-five (85) months in prison on November 15, 2010. See United
States v. Spivey, 5:10-cr-17-CAR (M.D.Ga. Nov. 15, 2010).

separation of powers, an inmate’s right to due process of law, or an inmate’s right to
equal protection. Rivera v. Allin, 144 F.3d 719, 721-27 (11th Cir. 1998), abrogated in
part by Jones v. Bock, 549 U.S. 199 (2007). Moreover, the prisoner must allege a
present danger, as opposed to a past danger, to proceed under the imminent danger
exception to § 1915(g). Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999).
A review of his previous filings indicates that Plaintiff has filed at least three
complaints in this Court which have been dismissed under circumstances that
constitute “strikes” for purposes of § 1915(g). See Spivey v. Powell, et al., 5:11-cv262-MTT (M.D.Ga. Jul. 11, 2011) (case dismissed pursuant to § 1915A); Spivey v.
Jackson GDCP, et al., 5:11-cv-289-MTT (M.D.Ga. Sept. 16, 2011) (case dismissed
pursuant to § 1915A); and Spivey v. Owens, et al., 5:11-cv-300-WLS (M.D.Ga. Jan.
25, 2012) (case dismissed pursuant to § 1915A).
As Plaintiff has 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 to § 1915(g). In his complaint, Plaintiff makes several
disjointed claims. Plaintiff states that he has been denied law library time, his
access to the courts has been impeded, he has been denied religious freedom, and
he has had a “delay in diagnosis.” (Compl. p. 3.) Plaintiff then specifically alleges
that his cellmate “Pee wee,” who is from Macon, Georgia, told Plaintiff that Plaintiff
“had to get off this compound,” so Plaintiff requested protective custody. Plaintiff
alleges he received an “Incident Report” for that reason. Plaintiff was then placed in
a cell with a “Mexican” who spoke no English. Plaintiff states he pressed the “Dress

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Button”2 and was put into a cell by himself. A day or two later, Plaintiff alleges he
was put in a cell with an inmate named Sanders with whom he had an argument.
Plaintiff again pressed the “Dress” button, but was told he could not be moved at
that time. Plaintiff then states, without further explanation, that he and his cellmate
later had an altercation.
That Saturday, Plaintiff asserts that he began having neck and shoulder pain.
Plaintiff was told it was not an emergency and he would have to wait until Monday to
file a “sick call” request. Plaintiff filed his sick call request on Monday, but was told it
would be two weeks before he could be seen.
On June 19, 2014, Plaintiff was informed that he would be moved to a “one
man” cell next door, but Plaintiff states he “was sceptical [sic] about this” because he
had recently been moved to “this cell.” Thus, Plaintiff refused the transfer. After his
refusal, officers “came with cameras and tactical gear, so [Plaintiff] complied.” In his
new cell, Plaintiff alleges he was housed with a homosexual who at some point
rubbed his genitalia on Plaintiff and began to kick him. After the inmate was
subdued, Plaintiff, who was “still on the wall” was kneed in the “Achilles calf area” by
an officer. Plaintiff was then taken to be examined wherein a Lieutenant Garcia took
some legal paperwork, a “personal book” Plaintiff was writing, and a mail catalog out
of Plaintiff’s sock. Said material was never returned to Plaintiff.
Plaintiff then states that he “would like to report but not file a claim for sexual
assault” that while he is asleep he is drugged and sexually assaulted. Plaintiff

2

Plaintiff’s complaint does not define the term “Dress Button,” but the Court assumes Plaintiff
assumes Plaintiff is referring to a “duress button.”
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contends that staff and/or inmates are coming into his cell “from behind the toliet
[sic] and shower and tray flap” and sticking objects into his rectum and touching his
penis. These acts have caused “injury to [Plaintiff’s] shoulder, neck, back, knee and
mouth.”
Plaintiff then claims he is denied access to the law library, legal mail has been
opened outside of his presence, and his access to courts has been impeded.
Plaintiff claims he is also being denied religious freedom because he has repeatedly
asked the chaplain, who has not made rounds since Plaintiff arrived, for prayer
schedules and Qurans but gets no response. Lastly, Plaintiff alleges that “[t]his type
torment is being employed by a Criminal Organazation [sic] from Macon Ga who
have been allowed to harass and terrorize me throughout Georgia Department of
Corrections and The Federal BOP.”
Even construing Plaintiff’s complaint liberally in his favor, it is clear that these
allegations do not satisfy the imminent danger exception. As such, Plaintiff’s complaint
must be DISMISSED.
It is noted that even if Plaintiff did not have “three strikes,” his complaint would be
subject to dismissal for abuse of the judicial process. Pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i), “the court shall dismiss the case at any time if the court determines
that . . . the action or appeal – is frivolous or malicious.” In Rivera v. Allin, 144 F.3d 719,
731 (11th Cir. 1998), abrogated on other grounds by Jones v. Bock, 549 U.S. 199
(2007), the Eleventh Circuit found that a case dismissed for abuse of the judicial
process, “is precisely the type of strike [based on frivolousness or maliciousness] that
Congress envisioned when drafting section 1915(g).” The Court’s discretion to dismiss
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a case without prejudice pursuant to 1915(e)(2)(B)(i) has been exerted and upheld on
multiple occasions. See e.g. Schmidt v. Navarro, -- F. App’x --, 2014 WL 3906465 (11th
Cir. Aug. 12, 2014) (finding it was not an abuse of discretion by the District Court to
dismiss § 1983 claim for abuse of the judicial process); Redmon v. Lake Cnty. Sheriff’s
Office, 414 F. App’x 221, 225-26 (11th Cir. 2011) (affirming the dismissal of a claim
where prisoner abused the judicial process by misrepresenting his litigation history);
Shelton v. Rohrs, 406 F. App’x 340, (11th Cir. 2010) (affirming the dismissal of suit
without prejudice pursuant to 1915(e)(2)(B)(i) based on plaintiff’s failure to disclose prior
litigation); Young v. Sec’y. Florida for Dep’t. of Corrections, 380 F. App’x 939 (11th Cir.
2010) (affirming the dismissal of civil rights case pursuant to 1915(e)(2)(B)(i) based on
plaintiff’s failure to disclose prior litigation). The Eleventh Circuit has held that “the court
must make a finding of bad faith on the part of the litigant before imposing such
sanctions.” In re Sunshine Jr. Stores, Inc., 456 F.3d 1291, 1304 (11th Cir. 2006). A
party engages in bad faith by delaying or disrupting the litigation or hampering
enforcement of a court order. Id. (quotation and citation omitted). Furthermore,
“[a]lthough pro se pleadings are held to a less stringent standard than pleadings drafted
by attorneys, a plaintiff’s pro se status will not excuse mistakes regarding procedural
rules.” Redmon, 414 F. App’x at 225-26.

In this case, Plaintiff, who signed a court-provided complaint under penalty of

perjury, answered “No” on the complaint when he was asked if he had “begun other
lawsuits in state or federal court dealing with the same facts involved in this action or
otherwise relating to your imprisonment.” (Compl. p. 1) (emphasis added). Plaintiff's
failure to provide a complete list of his litigation history is found to be an abuse of
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process as his attempt to mislead the Court with regard to his litigation history in this
case is egregious and knowing. While he was in the Georgia state prison system in
2011, Plaintiff filed five § 1983 complaints which were ultimately dismissed. It is further
noted that on May 16, 2014 alone, Plaintiff filed three separate § 1983 actions in this
Court.3 The Court thus finds that Plaintiff’s failure to note the previous § 1983 suits he
had filed in this Court was done in bad faith. As such, Plaintiff’s complaint must be
DISMISSED.
CONCLUSION
Based on the foregoing, Plaintiff’s 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 a new complaint
form and the full filing fee.
So ORDERED this 26th day of September, 2014.

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

lws

3

See Spivey v. Braggs, 5:14-cv-192-MTT (M.D.Ga. May 16, 2014); Spivey v. Farley, et al.,
5:14-cv-193-CAR (M.D.Ga. May 16, 2014); and Spivey v. FCI Atlanta, et al., 5:14-cv-194-MTT
(M.D.Ga. May 16, 2014).
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