RUSHIN vs WILKES et al

Filing 8

REPORT AND RECOMMENDATIONS that Plaintiff's 2 Motion for IFP be denied and this action be dismissed without prejudice. Objections to R&R due by 12/22/2017. Signed by Magistrate Judge Brian K. Epps on 12/05/2017. (jlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
RONALD EARLE RUSHIN,
Plaintiff,
v.
WARDEN WILKES; DEPUTY WARDEN
MCGREW; DEPUTY WARDEN
ROBINSON; DEPUTY WARDEN
SHELTON; and DEPUTY WARDEN
TREMBLE,
Defendants.

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CV 117-157

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, an inmate incarcerated at Augusta State Medical Prison (“ASMP”) in
Grovetown, Georgia, seeks to proceed in forma pauperis (“IFP”) in this action filed pursuant
to 42 U.S.C. § 1983. (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 that he has brought at least three
cases that were dismissed as frivolous or for failure to state a claim and count as strikes: (1)
Rushin v. Obriens, 1:10-CV-02106-RLV, doc. no. 2 (N.D. Ga. July 29, 2010); (2) Ash (a/k/a
Rushin) v. Adamson, 4:10-CV-55-CDL-GMF, doc. nos. 7, 12 (M.D. Ga. June 30, 2010); and (3)
Rushin v. Freeman, 1:05-CV-01699-RLV, doc. no. 2 (N.D. Ga. Aug. 16, 2005); see also Rushin v.
Williams et al., 5:17-cv-00354-MTT-CHW (M.D. Ga. Nov. 16, 2017) (dismissing Plaintiff’s
complaint for three strikes under § 1915(g)). 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 being housed at ASMP despite having no
mental or physical health diagnosis, which “plac[es] [him] in harms [sic] way subjecting
[him] to drug dealing gang/member [sic] that are mentally retarded.” (See doc. no. 1, pp. 56.) However, “[i]n the [prison] setting, a risk of harm to some degree always exists by the
nature of its being a [prison].” Purcell ex rel. Estate of Morgan v. Toombs Cty., Ga., 400
F.3d 1313, 1323 (11th Cir. 2005). Plaintiff provides no specific details concerning any
particularized danger. Indeed, he has not detailed even one specific instance of violence
against him since being housed at ASMP. Plaintiff’s vague fears without any specifics do
not by themselves demonstrate he was in any imminent danger when he filed his complaint.
See Medberry, 185 F.3d at 1193; cf. Brown v. Johnson, 387 F.3d 1344, 1350 (11th Cir.
2004) (finding imminent danger of serious physical injury where inmate complained of total
withdrawal of treatment for serious diseases, as a result of which he suffered from severe
ongoing complications). Therefore, Plaintiff fails to demonstrate that 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
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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 5th day of December, 2017, at Augusta,
Georgia.

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