RUSHIN v. EMMONS et al

Filing 3

ORDER DENYING IN FORMA PAUPERIS STATUS and DISMISSING without prejudice the instant petition. 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
:
RONALD EARLE RUSHIN,
:
:
Plaintiff
:
:
VS.
:
:
EMMONS, et. al.,
:
:
Defendants
:
_________________________________:

NO. 5:17-cv-00329-MTT-CHW

ORDER
Pro se Plaintiff Ronald Earle Rushin, currently incarcerated in Wilcox State Prison,
submitted a pro se petition for writ of mandamus on what appears to be a standard form for
use in the Superior Courts of Georgia. Petitioner requests that this Court order prison
officials to “ship Petitioner away from here to prevent injury.”

ECF No. 1 at 2.

Petitioner, however, failed to pay the Court’s filing fee or submit a properly completed
motion to proceed in forma pauperis. Consequently, on August 28, 2017, the Clerk of
Court issued a notice of deficiency affording Petitioner twenty-one (21) to either remit
payment to the Court or submit a motion to proceed without the prepayment of the filing
fee. The clerk included a copy of the Court’s standard application to proceed IFP and
advised Petitioner that failure to comply could result in the dismissal of this action. The
deadline has now passed without compliance or response from Petitioner. Petitioner’s
failure to comply or submit an application to proceed in forma pauperis is a sufficient basis

for dismissal of this action. See e.g. Castro v. Director, F.D.I.C., 449 F. App’x 786 (11th
Cir. 2011).
Upon review of the petition, however, it is apparent that Petitioner may not proceed
IFP in this action even if he filed an appropriate motion. Petitioner 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). Petitioner is thus DENIED in forma
pauperis status. His Petition is DISMISSED WITHOUT PREJUDICE for this reason
and for Petitioner’s failure to state a claim upon which relief may be granted.
I.

Three strikes under 28 U.S.C. § 1915(g)
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.
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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 federal
lawsuits and least three complaints were dismissed as frivolous, malicious, or for failure to
state a claim. See Rushin v. Freeman, 1:05-cv-01699, ECF No. 2 (N.D. Ga. Aug. 16,
2005) (dismissed for failure to state a claim); Ash v. Adamson, 4:10-cv-00055-CDL, ECF
No. 12 (M.D. Ga. June 30, 2010) (dismissed for failure to state a claim); Rushin v. Obriens,
1:10-cv-02106, ECF No. 2 (N.D. Ga. Jul 29, 2010) (dismissed as frivolous).
Because of this, Petitioner 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)).
When reviewing a pro se prisoner’s 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. Brown v. Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004);
Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).

Petitioner’s

complaint simply states that he wishes to be transferred, presumably to another prison, “to
prevent injury.” Petitioner’s vague, non-specific allegations are not sufficient to meet the
imminent danger standard.

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Because Petitioner has three prior dismissals that properly qualify as strikes under
28 U.S.C. § 1915(g), he cannot proceed in forma pauperis in this action 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 subject to dismissal. Id. (the proper procedure is to dismiss the
complaint without prejudice).
II.

Failure to state a claim
Even if Petitioner was able to proceed in this action in forma pauperis, his petition

for writ of mandamus is still subject to sua sponte dismissal as frivolous. Although
Petitioner has provided few details, it is apparent from the face of his filing that he seeks to
have this Court order state officials to “act pursuant to their legal duty.” ECF No. 1 at 1.
The United States District Courts, however, are unable to issue writs compelling action by
state officials in the performance of their duties. See Lawrence v. Miami-Dade Cty. State
Attorney Office, 272 F. App'x 781, 781 (11th Cir. 2008) (“Because the only relief
[petitioner] sought was a writ of mandamus compelling action from state officials, not
federal officials, the district court lacked jurisdiction to grant relief and did not err in
dismissing the petition.”); In re Gurley, 247 F. App’x 437 (4th Cir. 2007) (dismissing writ
of mandamus for lack of jurisdiction because sought only to compel actions of state
officials).
Because Petitioner seeks an order compelling state officials in the performance of their
duties, this Court is without jurisdiction to grant Petitioner the relief he seeks.
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III.

Conclusion

Because Plaintiff has three prior dismissals that properly qualify as strikes under 28
U.S.C. § 1915(g) and seeks relief this Court is without authority to grant, the instant
petition is hereby DISMISSED WITHOUT PREJUDICE.

SO ORDERED, this 4th day of October, 2017.

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

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