GREEN v. LUMPKIN et al

Filing 7

ORDER denying 2 Motion for Leave to Proceed in forma pauperis; denying 5 Motion to Appoint Counsel ; denying 6 Motion to Appoint Counsel; and, dismissing Plaintiff's complaint without prejudice. Ordered by US DISTRICT JUDGE C ASHLEY ROYAL on 7/14/15 (lap)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
TYRONE B. GREEN,
Plaintiff,
VS.
TRACEY LUMPKIN, et al.,
Defendant.
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CASE NO.: 5:15-CV-148-CAR-MSH

ORDER
Plaintiff Tyrone B. Green, a prisoner who is incarcerated at Baldwin State Prison
in Hardwick, Georgia, filed a pro se complaint seeking relief under 42 U.S.C. § 1983.
Plaintiff seeks leave to proceed in forma pauperis. As discussed below, Plaintiff has
three strikes under the Prison Litigation Reform Act, so he may not proceed in forma
pauperis. His motion to proceed in forma pauperis (ECF No. 2) is therefore DENIED,
and this action is DISMISSED without prejudice. Plaintiff has also filed two motions
to appoint counsel. These motions are likewise DENIED.
I.

Motions to Appoint Counsel
Plaintiff has moved for the appointment of counsel.

Under 28 U.S.C. §

1915(e)(1), the Court “may request an attorney to represent any person unable to afford
counsel.” There is, however, “no absolute constitutional right to the appointment of
counsel” in a § 1983 lawsuit. Poole v. Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987)
(per curiam). Appointment of counsel is a privilege that is justified only by exceptional
circumstances. Lopez v. Reyes, 692 F.2d 15, 17 (5th Cir. 1982). In deciding whether

legal counsel should be provided, the Court considers, among other factors, the merits of
Plaintiff’s claims and the complexity of the issues presented. Holt v. Ford, 862 F.2d 850,
853 (11th Cir. 1989) (en banc).
In this case, Plaintiff is an experienced pro se litigant, as noted below, who has
filed his complaint on a standard § 1983 form. The Court is now required to review the
Complaint to determine whether Plaintiff’s allegations should proceed for further factual
development. This process is routine in pro se prisoner actions and is thus not an
“exceptional circumstance” justifying appointment of counsel.

The facts stated in

Plaintiff’s Complaint are not complicated, and the law governing Plaintiff’s claims is
neither novel nor complex. Plaintiff’s motions to appoint counsel (ECF Nos. 5 & 6) are
accordingly DENIED.1
II.

Motion to Proceed in forma pauperis
Federal law bars a prisoner from bringing a civil action in federal court in forma

pauperis
if [he] 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.

1

Plaintiff’s second motion to appoint counsel also requested “paper work for a Temporary
Restraining Order” or requested that the Court “fill it for me on Tracey Lumpkin, et al.
Defendant.” (Mot. to Appoint Counsel 1-2, ECF No. 6.) Plaintiff has failed to offer any
explanation as to why he requires a temporary restraining order as to Defendant Lumpkin
or any other Defendant. To the extent Plaintiff’s request can be construed as a motion for
a temporary restraining order, it is therefore DENIED. See Fed. R. Civ. P. 65.
2

28 U.S.C. § 1915(g). This is known as the “three strikes provision.” Under § 1915(g), a
prisoner incurs a “strike” any time he has a federal lawsuit or appeal dismissed on the
grounds that it is frivolous or malicious or fails to state a claim. See Medberry v. Butler,
185 F.3d 1189, 1192 (11th Cir. 1999). Once a prisoner incurs three strikes, his ability to
proceed in forma pauperis in federal court is greatly limited: Leave to proceed in forma
pauperis may not be granted unless the prisoner is under imminent danger of serious
physical injury. Id.
A review of court records on the Federal Judiciary’s Public Access to Court
Electronic Records (“PACER”) database reveals that Plaintiff has filed multiple federal
lawsuits and that more than three of his complaints or appeals have been dismissed as
frivolous, or malicious, or for failure to state a claim. See, e.g., Order Dismissing Compl.,
Green v. Taylor, ECF No. 6 in Case No. 5:14-CV-00303-CAR-CHW (M.D. Ga. Sept. 11,
2014) (dismissed on three strikes grounds and for abuse of the judicial process); Order
Dismissing Compl., Green v. Douglas Police Dep’t, ECF No. 13 in Case No. CV514-024
(S.D. Ga. June 23, 2014) (dismissed on statute of limitations grounds); Green v. SedgwickPligrain Pride, ECF No. 8 in Case No. CV514-009 (S.D. Ga. Mar. 6, 2014) (dismissed for
failure to state claim); Order Dismissing Compl., Green v. Major Bennett, ECF No. 11 in
Case No. CV599-029 (May 21, 1999) (dismissed for failure to exhaust administrative
remedies).2 Plaintiff is accordingly barred from prosecuting this action in forma pauperis
unless he is in imminent danger of serious physical injury. 28 U.S.C. § 1915(g).

2

In Rivera v. Allin, the Eleventh Circuit explained that “[a] claim that fails to allege the
requisite exhaustion of remedies is tantamount to one that fails to state a claim upon
3

To qualify for this exception, a prisoner must allege specific facts that describe an
“ongoing serious physical injury,” or “a pattern of misconduct evidencing the likelihood
of imminent serious physical injury.” Sutton v. Dist. Attorney’s Office, 334 F. App’x
278, 279 (11th Cir. 2009) (per curiam) (internal quotation marks omitted). Complaints of
past injuries are not sufficient. See Medberry, 185 F.3d at 1193. Vague and unsupported
claims of possible dangers likewise do not suffice. See White v. State of Colo., 157 F.3d
1226, 1231 (10th Cir. 1998). The exception to § 1915(g) is to be applied only in
“genuine emergencies,” when (1) “time is pressing,” (2) the “threat or prison condition is
real and proximate,” and (3) the “potential consequence is serious physical injury.” Lewis
v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002).
Plaintiff alleges that Defendants have refused to transfer him to a transitional
center from January 2015 until the present date. He states that he is eligible for a transfer
and that Defendants have lied to him about whether and when he will be referred for a
transfer. (Compl. 5-6, ECF No. 1.) Nowhere in Plaintiff’s Complaint does he allege that
he is in imminent danger of serious physical injury. The Court thus finds that Plaintiff
has failed to demonstrate how he is now entitled to proceed in forma pauperis despite his
three strikes.
which relief may be granted.” 144 F.3d 719, 731 (11th Cir. 1998), abrogated on other
grounds by Jones v. Bock, 549 U.S. 199, 214 (2007). Therefore, a dismissal without
prejudice for failure to exhaust counts as a strike under 28 U.S.C. § 1915(g). See id. A
dismissal on statute of limitations grounds also constitutes a dismissal for failure to state
a claim and likewise counts as a strike. See Jones, 549 U.S. at 215 (“If the allegations . . .
show that relief is barred by the applicable statute of limitations, the complaint is subject
to dismissal for failure to state a claim[.]”). And finally, a dismissal for abuse of the
judicial process “is precisely the type of strike that Congress envisioned when drafting
section 1915(g).” Rivera, 144 F.3d at 731.
4

Plaintiff will therefore not be permitted to proceed in forma pauperis pursuant to §
1915(g), and his Complaint should be dismissed without prejudice to his right to refile
with pre-payment of the full $400 filing fee. See Dupree v. Palmer, 284 F.3d 1234, 1236
(11th Cir. 2002) (per curiam) (“[T]he proper procedure is for the district court to dismiss
the complaint without prejudice when it denies the prisoner leave to proceed in forma
pauperis pursuant to the three strikes provision of § 1915(g).”).
CONCLUSION
As discussed above, Plaintiff may not proceed in forma pauperis in this action, so
his motion to proceed in forma pauperis (ECF No. 2) is DENIED and this action is
DISMISSED without prejudice. Plaintiff’s motions to appoint counsel (ECF Nos. 5
and 6) are also DENIED. 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 14th day of July, 2015.

S/ C. Ashley Royal
C. ASHLEY ROYAL
UNITED STATES DISTRICT JUDGE

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