HENDERSON v. STATE OF GEORGIA, et al

Filing 11

ORDER denying 2 Motion for Leave to Proceed in forma pauperis and dismissing this action without prejudice; finding as moot 10 Motion to Fast-Track the Case. (aks)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION
KEITH HENDERSON,
Plaintiff,
VS.
STATE OF GEORGIA, et al.,
Defendants.
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CASE NO.: 7:15-CV-070-HL-TQL

ORDER
Plaintiff Keith Henderson, a prisoner who is incarcerated at Valdosta State Prison
in Valdosta, Georgia, filed a pro se pleading in the United States District Court for the
Middle District of Florida apparently seeking relief under 42 U.S.C. § 1983.1 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’s additional “Motion to Fast-Track the
Case” (ECF No. 10) is DENIED as moot.
ANALYSIS
Federal law bars a prisoner from bringing a civil action in federal court in forma
pauperis

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Although Plaintiff filed his Complaint on a habeas petition form, the Florida court
construed Plaintiff’s Complaint as one arising under 42 U.S.C. § 1983 because all of the
listed grounds for relief concern the conditions of Plaintiff’s confinement and the only
relief sought is monetary damages. (Transfer Order 1 n.1, ECF No. 5.)

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. 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 a host of frivolous
and meritless cases in federal court and that “his status as a three-strikes plaintiff cannot
seriously be disputed.” Henderson v. Thrash, 1:14-CV-00202-NT, 2014 WL 2944065, at
*1 (D. Me. June 30, 2014). Plaintiff has been identified as an abusive and vexatious
litigant for his filing of numerous actions without a plausible factual or legal basis, and
the Southern District of Georgia even created a special plan and miscellaneous case file
to consolidate Plaintiff’s complaints for prescreening in an effort to lessen the impact of
his repeated frivolous filings. See Order, In re Keith Henderson, ECF No. 1 in Case No.
3:12-mc-002 (S.D. Ga. Dec. 18, 2012). Orders dismissing Plaintiff’s complaints as
frivolous, malicious, or for failing to state a claim upon which relief may be granted
include: Order Dismissing Compl., Henderson v. Newsome, ECF No. 10 in Case No.
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CV311-056 (S.D. Ga. Oct. 17, 2011) (dismissed as a sanction for abuse of the judicial
process); Order Dismissing Compl., Henderson v. Harris, ECF No. 8 in Case No. 1:09CV-181 (M.D. Ga. Feb. 19, 2010) (dismissal for failure to follow court orders);
Henderson v. Strickland, ECF No. 10 in Case No. 1:09-CV-176 (M.D. Ga. Feb. 17, 2010)
(same).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).
Plaintiff alleges that during his confinement he has been subjected to robbery,
rape, and sexual assault. (Compl. 5, ECF No. 1.) He also states that his personal
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Providing false information to the Court and failing to comply with court orders both
constitute “abuse of the judicial process,” and the Eleventh Circuit has held that
“dismissal for abuse of the judicial process is precisely the type of strike that Congress
envisioned when drafting section 1915(g).” See 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); see
also Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1544 (11th Cir. 1993) (characterizing
failure to comply with court orders as “abuse of the judicial process”).
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property has been stolen and that there is a conspiracy to murder him. Id. Plaintiff
makes unspecified complaints about “store, hygiene, jewelry, security custody level,
[and] medical profile.” Id. He also contends he suffered “brutality or inadequate medical
care.” Id. at 7. Finally, Plaintiff appears to allege he was discriminated against and
denied access to file civil rights complaints. See, e.g., id. at 8.
To the extent Plaintiff’s allegations can be construed as complaining that prison
officials assaulted him or failed to provide him adequate medical care in the past, such
claims are insufficient to establish that he should be permitted to proceed in forma
pauperis in the present action.

See Medberry, 185 F.3d at 1193 (“[A] prisoner’s

allegation that he faced imminent danger sometime in the past is an insufficient basis to
allow him to proceed in forma pauperis pursuant to the imminent danger exception to [§
1915(g)].”).

And Plaintiff’s general references to any other potentially dangerous

conditions in the prison are not sufficient to establish an imminent threat of serious
physical harm. Plaintiff’s vague statements provide the Court with no specific facts
regarding the alleged violence or threatening conduct he claims to endure. See Newsome
v. Johnson, No. CV 312-086, 2012 WL 5472051, at *2 (S.D. Ga. Oct. 10, 2012)
(prisoner’s failure to identify who was threatening him or to offer other specific facts in
support of his allegations was insufficient to demonstrate eligibility for “imminent
danger” exception); cf. also Smith v. Clemons, 465 F. App’x 835, 835 (11th Cir. 2012)
(per curiam) (prisoner alleged imminent danger when he specifically described the prison
official who threatened him and the nature of those threats). Absent such facts, Plaintiff’s
allegations are not sufficiently specific to establish a real and imminent danger of serious
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physical injury. See White, 157 F.3d at 1231 (vague allegations of harm and unspecific
references to injury are insufficient). The Court thus finds that Plaintiff has failed to
demonstrate how he is now entitled to proceed in forma pauperis despite his three strikes.
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. 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 has also
filed a “Motion to Fast-Track the Case” (ECF No. 10) which is DENIED as moot.
SO ORDERED, this 23rd day of July, 2015.

s/ Hugh Lawson________________
HUGH LAWSON, SENIOR JUDGE

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