RUSHIN v. TAYLOR
AMENDED ORDER DENYING IFP motion and DISMISSING Complaint without prejudice. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 4/19/2017. (tlh) (Main Document 6 replaced on 4/19/2017) (tlh).
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
RONALD EARLE RUSHIN,
Warden CEDRIC TAYLOR,
CIVIL NO. 5:17-CV-0004-MTT
AMENDED ORDER OF DISMISSAL
Plaintiff Ronald Earl Rushin, a detainee currently confined at the Coffee County
Correctional Facility in Nichols, Georgia, has filed a pro se civil rights complaint in this
Court seeking relief under 42 U.S.C. § 1983. Plaintiff also seeks leave to proceed in this
action without prepayment of the $350.00 filing fee.
After a review of Plaintiff’s
submissions, the Court finds that Plaintiff may not proceed in forma pauperis, as three of
his prior federal lawsuits were dismissed for failure to state a claim and count as “strikes”
under 28 U.S.C. § 1915(g). His Motion to Proceed in forma pauperis is accordingly
DENIED, and his Complaint is DISMISSED without prejudice.
Motion to Proceed in forma pauperis
Plaintiff has moved for leave to proceed without prepayment of the filing fee.
Federal law prohibits a prisoner from bringing a civil action in federal court in forma
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.
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. Medberry v. Butler, 185
F.3d 1189, 1193 (11th Cir. 1999). If a prisoner incurs three strikes, his ability to proceed
in forma pauperis in federal court is greatly limited: Leave may not be granted unless the
prisoner alleges an “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 dozens of lawsuits
in federal court and that at least three of his complaints were dismissed for failure to state a
claim. See Rushin v. Obriens, No. 1:10-CV-2106-RLV, ECF No. 2 (N.D. Ga. July 29,
2010) (dismissed as frivolous); Ash 1 v. Adamson, No. 4:10-CV-55-CDL, ECF No. 12
(M.D. Ga. June 30, 2010) (dismissed as frivolous and for failure to state a claim); and
Rushin v. Freeman, No. 1:05-CV-1699-RLV, ECF No. 2 (N.D. Ga. Aug. 16, 2005)
(dismissed for failure to state a claim). Because of this, Plaintiff may not proceed in forma
pauperis unless he can show that he qualifies for the “imminent danger” exception in §
1915(g). See Medberry, 185 F.3d at 1193.
This Court must, therefore, review the facts alleged in Plaintiff’s Complaint (and the
According to court records, Plaintiff also goes by the name “Ronald Ash.”
attachments thereto), to determine whether his claims warrant an exception to the three
strikes rule. When reviewing a pro se complaint for this purpose, the district court must
accept all factual allegations in the complaint as true and view all allegations of imminent
danger in Plaintiff’s favor. See Brown v. Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004);
Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).
In this case, Plaintiff attempts to satisfy the “imminent danger” exception by
alleging that prison officials are trafficking illegal drugs and other contraband within
Wilcox State Prison, “placing [Plaintiff] in cells with drug addicts,” and “promoting
violence through their noncompliance with GDC rules.” These general allegations are,
however, not sufficient to support a finding of imminent danger, as Plaintiff fails to allege
specific facts to show that there is a real (as opposed to potential) and imminent threat to
his physical safety. See Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002) (exception to
§1915(g) is to be applied only in “genuine emergencies,” when “time is pressing,” and the
threat is shown to be both “real and proximate.”); White v. State of Colo., 157 F.3d 1226,
1231 (10th Cir. 1998) (vague and unsupported claims of possible dangers are not sufficient
to warrant exception to § 1915(g)). What is more, the claims in Plaintiff’s Complaint are
based on conditions and events occurring at Wilcox State Prison. Plaintiff was transferred
to the Coffee County Correctional Facility shortly after he filed this lawsuit2 and was
thereby removed from any perceived imminent threat of serious physical injury at Wilcox
State Prison. See Medberry, 185 F.3d at 1193.
See Notice of address change, ECF No. 4.
For these reasons, Plaintiff’s Motion to proceed in forma pauperis is DENIED.
When the district court denies a prisoner leave to proceed in forma pauperis pursuant to §
1915(g), the proper procedure is for the court to dismiss the complaint without prejudice.
Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002). Plaintiff’s Complaint is,
therefore, DISMISSED without prejudice to his right to refile (within the relevant statute
of limitations) with full payment of the Court’s filing fee.
SO ORDERED, this 19thday of April, 2017.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?