Banks v. Song et al

Filing 5

OPINION AND ORDER adopting Magistrate Judge Alan J. Baverman's Final Report and Recommendation 3 and dismissing this action without prejudice. Signed by Judge William S. Duffey, Jr on 9/5/17. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
FREDERICK BANKS,
Plaintiff,
v.

1:17-cv-2694-WSD

SOO SONG, US Attorney, et al.,
Defendants.

OPINION AND ORDER
This matter is before the Court on Magistrate Judge Alan J. Baverman’s
Final Report and Recommendation [3] (“R&R”), recommending that Plaintiff
Frederick Banks (“Plaintiff”) be denied in forma pauperis status and this action be
dismissed without prejudice.
On July 17, 2017, Plaintiff, proceeding pro se, filed his Complaint [1] for
mandamus relief against various entities, persons, and governmental officials.
Plaintiff states that he is a prisoner currently confined in the Northeast Ohio
Correctional Center (NEOCC) in Youngstown, Ohio. On July 21, 2017, Plaintiff’s
Amended Complaint [2] was filed on the docket.
On August 1, 2017, the Magistrate Judge issued his R&R, recommending
that this action be dismissed under 28 U.S.C. § 1915(g) because Plaintiff did not

pay the filing fee before filing his Complaint and he cannot proceed in forma
pauperis because he filed, while incarcerated, more than three civil actions that
have been dismissed as frivolous, malicious, or for failure to state a viable claim.
(R&R at 2-3). Plaintiff has not filed objections to the R&R, and thus the Court
reviews it for plain error. See United States v. Slay, 714 F.2d 1093 (11th Cir.
1983), cert. denied, 464 U.S. 1050 (1984).
A prisoner may not bring a civil action in federal court, without paying the
filing fee, “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); see Medberry v. Butler, 185 F.3d
1189, 1193 (11th Cir. 1999). This is known as the “three strikes” provision.
Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002). Where the three strikes
rule does not allow a prisoner to proceed in forma pauperis, his complaint should
be dismissed without prejudice. See id.
The Magistrate Judge found that Plaintiff’s Complaint should be dismissed
because Plaintiff, while incarcerated, filed at least three civil actions that were
dismissed as frivolous, malicious, or for failure to state a claim. See Order [4],
2

Banks v. Hornak, No. 5:16-ct-3160-BO (E.D.N.C. July 19, 2016) (listing cases and
citing Banks v. Cty. of Allegheny, 568 F. Supp. 2d 579, 586 n.1 (W.D. Pa. 2008)).
The Magistrate Judge also found that Plaintiff does not demonstrate that he is
“under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). The
Court finds no plain error in the Magistrate Judge’s determinations or
recommendation, and this action is dismissed without prejudice. See 28 U.S.C.
§ 1915(g).
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Alan J. Baverman’s
Final Report and Recommendation [3] is ADOPTED.
IT IS FURTHER ORDERED that this action is DISMISSED WITHOUT
PREJUDICE.

SO ORDERED this 5th day of September, 2017.

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