Vaughns v. Sherif Roundtree et al

Filing 3

REPORT AND RECOMMENDATIONS that the 2 MOTION for Leave to Proceed in forma pauperis be denied, that this action be dismissed without prejudice re 1 Complaint. Objections to R&R due by 9/18/2017. Signed by Magistrate Judge Brian K. Epps on 08/30/2017. (thb) Modified on 8/30/2017 (thb).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
JOHNNY LEE VAUGHNS,

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Plaintiff,
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v.
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SHERIF ROUNDTREE; MAJOR LEVERTT; )
JUDY, Deputy; KICTHENS, Deputy;
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YOUNG, Deputy; and LT. ELIAM,
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Defendants.
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CV 117-095

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

Plaintiff, an inmate incarcerated at Phillips State Prison in Buford, Georgia, seeks to
proceed in forma pauperis (“IFP”) in this action filed pursuant to 42 U.S.C. § 1983 regarding
events allegedly occurring in Augusta, Georgia. (Doc. no. 2.) For the reasons set forth
below, the Court REPORTS and RECOMMENDS Plaintiff’s request to proceed IFP be
DENIED (doc. no. 2) and this action be DISMISSED without prejudice.
I.

BACKGROUND
A prisoner attempting to proceed IFP in a civil action in federal court must comply

with the mandates of the Prison Litigation Reform Act (“PLRA”), Pub. L. No. 104-134,
§§ 801-810, 110 Stat. 1321 (1996). 28 U.S.C. § 1915(g) of the PLRA provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil
action or proceeding under this section if the prisoner 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.
“This provision of the PLRA, commonly known as the three strikes provision,
requires frequent filer prisoners to prepay the entire filing fee before federal courts may
consider their lawsuits and appeals.” Rivera v. Allin, 144 F.3d 719, 723 (11th Cir. 1998)
(internal citations omitted), abrogated on other grounds by Jones v. Bock, 549 U.S. 199
(2007). The Eleventh Circuit has upheld the constitutionality of § 1915(g) because it does
not violate an inmate’s right to access the courts, the doctrine of separation of powers, an
inmate’s right to due process of law, or an inmate’s right to equal protection. Id. at 721-27.
II.

DISCUSSION
A.

Dismissal Is Warranted Because Plaintiff Has Three Strikes Under
§ 1915(g).

A review of Plaintiff’s history of filings reveals he has brought at least three cases
that were dismissed and count as strikes: (1) Vaughns v. Major Levertt et al., CV 117-005 (S.D.
Ga. January 9, 2017); (2) Vaughns v. Sheriff Roundtree et al., CV 116-215 (S.D. Ga. Dec. 30,
2016); and (3) Vaughns v. Sheriff FNU Roundtree et al., CV 116-047 (S.D. Ga. Apr. 20, 2016).
All three cases qualify as strikes under § 1915(g) because they were dismissed for providing
dishonest filing information. See Rivera, 144 F.3d at 731 (a case dismissed as an “abuse of
the judicial process” counts as a strike under § 1915(g)); Pinson v. Grimes, 391 F. App’x
797, 798-99 (11th Cir. 2010) (failing to disclose previously filed cases properly results in
strike). Because Plaintiff has at least three strikes, he cannot proceed IFP in the present case
unless he can demonstrate he qualifies for the “imminent danger of serious physical injury”
exception to § 1915(g).
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B.

Plaintiff Does Not Qualify for the Imminent Danger Exception.

In order to come within the imminent danger exception, a prisoner must be in
imminent danger at the time he files suit in district court, not at the time of the alleged
incident that serves as the basis for the complaint. Medberry v. Butler, 185 F.3d 1189, 1193
(11th Cir. 1999). Here, Plaintiff complains of events occurring at the Charles B. Webster
Detention Center in Augusta, Georgia. (See doc. no. 1, pp. 3-5.) Notably, however, Plaintiff
is currently incarcerated at Phillips State Prison. (Id. at 3.) As Plaintiff’s allegations do not
even challenge his current conditions of confinement, it is clear he is not in any imminent
danger. Therefore, Plaintiff fails to demonstrate he should be excused from paying the full
filing fee under the “imminent danger” exception to § 1915(g)’s three strike rule.
III.

CONCLUSION
For the reasons set forth above, the Court REPORTS and RECOMMENDS

Plaintiff’s request to proceed IFP be DENIED (doc. no. 2) and this action be DISMISSED
without prejudice. If Plaintiff wishes to proceed with the claims raised in this lawsuit, he
should be required to initiate a new lawsuit, which would require submission of a new
complaint. Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002).
SO REPORTED and RECOMMENDED this 30th day of August, 2017, at Augusta,
Georgia.

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