FREDRICK v. CARTER et al

Filing 6

ORDER DENYING 2 Motion for Leave to Proceed in forma pauperis and DISMISSING Plaintiff's Complaint without prejudice. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 5/12/2017. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
:
DANTE G FREDRICK,
:
:
Plaintiff
:
:
VS.
:
:
CRYSTAL CARTER, et. al.,
:
:
Defendants
:
_________________________________:

NO. 5:17-cv-00141-MTT-CHW

ORDER
Pro se Plaintiff Dante G Fredrick, currently incarcerated in Macon State Prison,
submitted a pro se complaint under 42 U.S.C. § 1983. Plaintiff brings his complaint against
Cyrstal Carter and Debra M. Ayala, deputy clerks for the Superior Court of Macon County.
Plaintiff seeks to proceed in this action without the prepayment of filing fees (ECF No. 2)
and filed a “Motion for Consent to Magistrate Judge to Handle all Pleadings.” ECF No. 3.
The Court has now reviewed the complaint and all other submissions and finds that
Plaintiff may not proceed in this action without first prepaying the full $400.00 filing fee,
as at least three of his prior federal lawsuits were dismissed as frivolous, malicious, or for
failure to state a claim and count as “strikes” under 28 U.S.C. § 1915(g). Plaintiff’s
motion to proceed in forma pauperis is DENIED, and this action is DISMISSED without
prejudice.

I.

Discussion
Federal law prohibits 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.
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 and leave may not be granted unless the
prisoner shows 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 at least three
complaints that were dismissed as frivolous, malicious, or for failure to state a claim. See
Fredrick v. Williams, 6:16-cv-73 (S.D. Ga. Aug. 24, 2016); Fredrick v. Glynn Co. State
Court, 2:16-cv-74 (S.D. Ga. July 19, 2016); Fredrick v. Scarlett, 2:15-cv-135 (S.D. Ga.
Dec. 9, 2015); Fredrick v. Danforth, 3:14-cv-162 (S.D. Ga. April 27, 2015). Moreover,
the Eleventh Circuit has previously determined that the “three strikes” provision of §
1915(g) applies to Plaintiff. Fredrick v. Glynn Count State Court, No. 16-15120 (11th
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Cir. docketed July 25, 2016); Fredrick v. Macon SP Warden, No. 17-11624 (11th Cir.
docketed April 10, 2017).
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). Medberry, 185 F.3d at 1193.
To satisfy this provision a prisoner must allege specific facts that describe “an ongoing
serious physical injury, or of 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) (quoting Brown v. Johnson, 387 F.3d 1344, 1350 (11th Cir. 2004)).
Plaintiff has not alleged imminent danger, and an independent review of his complaint
establishes that his allegations do not implicate a physical injury, much less one that is both
imminent and serious.
II.

Conclusion
Because Plaintiff has three prior dismissals that properly qualify as strikes under 28

U.S.C. § 1915(g), his motion for leave to proceed in forma pauperis DENIED. Once a
plaintiff is denied in forma pauperis status, he cannot simply pay the filing fee and proceed
with his complaint.

Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002).

Accordingly, Plaintiff’s complaint is DISMISSED without prejudice. Id. (the proper
procedure is to dismiss the complaint without prejudice). The clerk is DIRECTED to
terminate all remaining motions as MOOT.

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SO ORDERED, this 12th day of May, 2017.

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

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