BROWN v. GEORGIA STATE BOARD OF PARDONS AND PAROLES et al

Filing 11

ORDER DENYING 2 and 9 Motions for Leave to Proceed in forma pauperis; DISMISSING action without prejudice; and DENYING as moot 6 , 8 , and 10 Motions. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 10/4/2017. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
KURTIS LEE BROWN,
Plaintiff,
VS.
GEORGIA STATE BOARD OF
PARDONS & PAROLES, et al.,
Defendants.
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CASE NO.: 5:17-CV-249-MTT-TQL

ORDER
Plaintiff Kurtis Lee Brown, a prisoner who is presently incarcerated at the Autry
State Prison in Pelham, Georgia, filed a pro se complaint seeking relief pursuant 42
U.S.C. § 1983. Plaintiff also 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. The Court therefore DENIES Plaintiff’s motions for leave to
proceed in forma pauperis (ECF Nos. 2, 9), and this action is DISMISSED without
prejudice. Plaintiff’s remaining pending motions (ECF Nos. 6, 8, 10) are DENIED as
moot.
ANALYSIS
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.

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 (1) frivolous, (2) malicious, or (3) fails to state a claim. See Medberry
v. Butler, 185 F.3d 1189, 1192 (11th Cir. 1999); see also Daker v. Comm’r, Ga. Dep’t of
Corr., 820 F.3d 1278, 1283-84 (11th Cir. 2016) (confirming that “these three grounds are
the only grounds that can render a dismissal a strike”). 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. Medberry, 185 F.3d at 1192.
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 at least three of his complaints or appeals have been dismissed as
frivolous, malicious, or for failure to state a claim. See, e.g., Order Dismissing Compl.,
Brown v. Howerton, ECF No. 8 in Case No. 1:11-CV-4080-RWS (N.D. Ga. Feb. 9, 2012)
(dismissing for failure to state a claim); Order Dismissing Compl., Brown v. Thomas,
ECF No. 14 in Case No. 4:07-CV-0124-WTM-GRS (S.D. Ga. Dec. 8, 2008) (adopting
recommendation of dismissal for abuse of the judicial process which specifically
indicated that the case should count as a strike for purposes of § 1915(g));1 Order

1

The Eleventh Circuit has upheld as “strike-worthy” dismissals, such as the one in this
case, where a prisoner has lied under penalty of perjury about the existence of a prior
lawsuit. Rivera v. Allin, 144 F.3d 719, 731 (11th Cir. 1998), abrogated on other grounds
by Jones v. Bock, 549 U.S. 199, 214 (2007). The court observed that such a dismissal for
abuse of the judicial process “is precisely the type of strike that Congress envisioned
when drafting section 1915(g).” Id.; see also Pinson v. Grimes, 391 F. App’x 797, 79899 (11th Cir. 2010) (per curiam) (failure to disclose previously filed cases properly
results in strike).
2

Dismissing Compl., Brown v. McConnell, ECF No. 9 in Case No. 4:09-CV-0086-WTMGRS (S.D. Ga. July 27, 2009) (adopting recommendation of dismissal where claims were
Heck-barred and therefore failed to state a claim); see also Order Dismissing Compl.,
Brown v. Ga. Dep’t of Corr., ECF No. 6 in Case No. 1:12-cv-03353-RWS (N.D. Ga. Oct.
31, 2012) (adopting recommendation of dismissal based on § 1915(g)).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).
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).

2

The Court notes that Plaintiff has filed complaints using several different aliases that
have been recognized by the Georgia Department of Corrections, including Curtis Lee
Brown and Kurtis Ladell Brown. http://www.dcor.state.ga.us/GDC/Offender/Query
(search Brown, Kurtis) (last visited Sept. 27, 2017); see also Report & Recommendation,
Brown v. Thomas, ECF No. 12 in Case No. 4:07-cv-00124-WTM-GRS (S.D. Ga. Oct. 10,
2008) (noting “plaintiff’s willingness to use aliases in filings with this Court,” including
“Curtis Lee Brown” and “Curtis L. Brown”).
3

In this case, Plaintiff is claiming that Defendants “retroactively increased his
mandatory time of incarration [sic]” by nearly forty months and have refused to consider
him for parole. Compl. 5, ECF No. 1. Plaintiff alleges this increase in the length of his
sentence “is clear[ly] prohibited by ex post facto prohibitions” in the United States
Constitution, and Plaintiff seeks compensatory damages as a result. Id. at 5-6. These
allegations in no way suggest that Plaintiff is presently in imminent danger. As such,
Plaintiff will 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
For the foregoing reasons, Plaintiff’s motions to proceed in forma pauperis in this
action (ECF Nos. 2, 9) are DENIED and this 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. Plaintiff’s remaining pending
motions (ECF Nos. 6, 8, 10) are DENIED as moot.
SO ORDERED, this 4th day of October, 2017.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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