Blackerby v. Baker et al

Filing 3

REPORT AND RECOMMENDATIONS that the ifp motion be denied and that the pla's action be Dismissed w/o prejudice - re 1 Complaint filed by Noble Blackerby, 2 MOTION for Leave to Proceed in forma pauperis filed by Noble Blackerby Objections to R&R due by 10/27/2008. Signed by Magistrate Judge W. Leon Barfield on 10/07/08. (cmr)

CRIGINAL
4- IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DTSTRICT OF GEORGIA DUBLIN DIVISION NOBLE J3LACKERBY, Plaintiff, v. THURBERT BAKER, Attorney General, and PHILLIP WEST, Judge, Dodge County Superior Court,1 Defendants. CV 308-091

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MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

Plaintiff, an irimate presently incarcerated at Dodge State Prison in Chester, Georgia, seeks to proceed informapauperis ("IFP") in this action filed pursuant to 42 U.S.C. § 1983. Forthe reasons set forth below, the Court REPORTS and RECOMMENDS that Plaintiff's request to proceed IFP be IJENIED and that this action be IMSMISSED without prejudice.
1. BACKGROUND

A prisoner attempting to proceed IFP in a civil action in federal court must comply with the mandates ofthe Prison Litigation Reform Act ("PLRA"), Pub. L. No. 104-134, §sS 801-810, 110 Stat. 1321 (1996). 28 U.S.C. § 1915(g)ofthe PLRAprovides:

The Court notes that Dodge County Superior Court is listed as a defendarit on the Court' s docket. However, Plaintiffhas not raised any claims against Dodge County Superior Court, and its appearance on the front page of Plaintiff's complaint appears to be a designation referring to Defendant West. Thus, the CLERK is DIRIECTED to TERMINATE "Dodge County Superior Court" from the list ofDefendants on the docket.

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In no event shall a prisoner bring a civil action or appeal ajudgment in a civil action or proceeding under this section ifthe prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court ofthe United States that was disniissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which reliefmaybe granted, unless the prisoneris under imminent danger ofserious physical injury.2 The Eleventh Circuit concluded that § 1915(g) does not violate an inmate's nght to access to the courts, the doctrine of separation ofpowers, an inmate's right to due process of law, or an inmate's right to equal protection. Accordingly, the court upheld the constitutionality of 1915(g). Rivera v. Allin, 144 F.3d 719, 721-27 (llth Cir. 1998), abrogated on other

grounds by Jones v. Bock, 549 U.S. 199 (2007).
11. DISCUSSION A. Prior Filing History

A review of Plaintiff's history of fihings reveals that he has brought at least three cases that were dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted: (1) Blackerby v. Donald, CV404-231 (N.D. Ga. June 23, 2005) (dismissed for failure to state a claim for § 1983 relief); (2) Blackerbyv. O'Donnell, CV407116 (N.D. Ga. July 31,2007) (dismissed as frivolo us); (3) Blackerby v. Purdue, CV 107-1728 (N.D. Ga. Oct. 2, 2007) (dismissed for failure to state a claim for § 1983 relief). 3 As Plaintiff

2 The Eleventh Circuit noted that "[tlhis 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. Aiim, 144 F.3d 719, 723 (11 th Cir. 1998) (intemal citations omitted), abrogated on other grounds by Jones v. Bock, 549 U.S. 199 (2007). 3 Plaintiffhas amassed several more strikes in the Northern District of Georgia based on § 1983 cases he filed against persons that were apparently involved in his arrest, criminal prosecution, and subsequent cooperation with law enforcement officials during his 2

filed a complaint that was dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted in eaeh of the cases cited above, these previously disrnissed cases quaiify as strikes under § 1915(g). Plaintiffhas at least three strikes under § 1915 (g). Therefore, he cannot proceed i; forma pauperis in the present case unless he can demonstrate that he qualifies for the "imminent dariger of serious physical injury" exception to § 1915(g). 11. No Allegation of "Imminent Danger" 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 forthecomplaint. Medberryv. Butier, 185 F.3d 1189, 1193 (11 th Cir. 1999). In his complaint, Plaintiff fails to raise any allegations that he is in any imminent danger. Specifically, Plaintiff alieges that the state was granted several continuances in his habeas corpus proceeding because it did not have documents regarding Plaintiffand that the attorney for the state, whom he names as Daniel King, perjured himself at one ofthe hearings. (Doc. no. 1, p. 3). He also alieges that Judge West has delayed over thirty (30) days in ruding on Plaintiffs "habeas corpus hearing" and motion for default judgment. (Id. at 4)4 Therefore, since Plaintiffhas failed to make any allegations that he is

incarceration regarding other ongoing investigations. 4 Although P!aintiff is complaining about his state habeas proceedings, he is not attempting to attack the validity ofhis conviction in this case. Rather, he contends that the events cornplained of denied him due process and other constitutional rights. (Doc. no. 1, p. 4). Further, Plaintiff does not seek release from incarceration, the relief afforded under § 2254, but instead seeks compensatory and punitive damages for his "pain and suffering." (Id.); fPreiserv. Rodriguez, 411 U.S. 475, 500 (1973)(holding that "when a stateprisorter is challenging the very fact or duration ofhis physical imprisonment, and the relief he seeks 3

in imminent danger, he should not be excused from paying the full fihing fee under the "irnminent danger" exception of 1915(g). C. Dishonesty in Complaint Moreover, the form complaint Plaintiff used to commence this case, "Civil Rights Complaint Pursuant to 42 U.S.C. § 1983 in the United States District Court for the Northern District of Georgia," requires that prisoner plaintiffs disclose whether they have brought other federal Iawsuits while incarcerated and the disposition of any such suits. (Doc. no. 1, pp. 1-2). Under the question concerning whether a prisoner plaintiff has brought any ]awsuits in federal court dealing with facts other than those in this action, Plaintiffdeclared, under penalty ofperjury, that he has not brought any lawsuits in federal court other than this action. (Id. at 1, 5). Ofcourse, as noted above, Plaintiffhas indeed filed several cases in federal court that were dismissed as frivolous, malicious, or for failure to state a claim upon which reliefmay be granted, namely CV404-231, CV407-1 16, and CV!07-1728. Sirnply put, Plaintiff's answers to the questions regarding his prior history of fihings are improper, and he has lied, under penalty ofperjury, about these prior fihings. The Eleventh Circuit has indicated its approval of dismissing a case based on dishonesty in a complaint. In Rivera, the Court of Appeals reviewed a prisoner plaintiff's fihing history for the purpose of determining whether prior cases counted as "strikes" under the PLRA and stated:

is a determination that he is entitled to immediate release. . , his sole federal remedy is a writ ofhabeas corpus").

The district court's dismissal without prejudice in Parker is equally, ifnot more, strike-worthy. In that case, the court found that Rivera had lied under penalty of perjury about the existence ofa prior lawsuit, Arocho. As a sanction, the court dismissed the action without prejudice, finding that Rivera "abuse[d] the judicial process[.1" Rivera, 144 F.3d at 731, abrogated on othergrounds by Jones v. Bock, 549 U.S. 199 (2007) (citations omitted)5 In sum, Plaintiff has accumulated three strikes against him and cannot satisfy the dictates ofthe "imminent danger" exception of 1915(g); thus, he fails to demonstrate that

The court in Parker thoughtfully ruled as foliows: The sophistication of [pjlaintiff's substantive arguments and his knowledge of the procedural rules convince this Court that [p]laintiff understands the severity of not revealing the truth to the Court. This Court has the authority to control and manage matters such as this pending before it. This Court firmly believes that [p] laintiff must be forced to conform to acceptable standards in approaching this Court. This Court will not tolerate faise responses andlor statements in any pleading or motion filed for consideration by the Court. lfthe Court cannot rely on the statements andlor responses made, it threatens the quality of justice. Here [p}laintiff has faisely responded [by denying the existence of prior lawsuits] to Question (B) in Section IV, entitled "Previous Lawsuits." Therefore, this Court is ofthe opinion that an appropriate sanction is to dismiss this case without piudice and warn [p]laintiff that such faise responses, filed herein or filed in the future, will not be tolerated and may result in more severe and long-terni sanctions in the future. For now, this case will be dismissed for [p]1aintiffs abuse ofthe judicial process in not providing the Court with true factua! statements and/or responses that can be relied on to bring his case to an expeditious closure. Rivera v. Parker, Case No. 96-325-Civ-J-1O, doc. no. 4 (M.D. Fia. May 2, 1996).
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he should be excused from paying the full fihing fee. Furthermore, even if Plaintiff were allowedto proceed JFP, the above-captioned case would stilibe subjectto arecornmendation ofdisrnissal as a sanction because he has abused thejudicial process by providing dishonest inforrnation about his fihing history. 111. CONCLUSION Accordingly, the Court RE1PORTS and RECOMMENDS that Plaintiff' s request to proceed IFP be DENIED and that this action be D!SMISSED without prejudice. IfPlaintiff wishes to proceed with the claims raised in this lawsuit, he should be required to submit a new cornplaint, along with the full ffling fee. Dupree v. Paimer, 284 F.3d 1234, 1236 (1 lth Cir. 2002) (per curiam). SO REPORTED AND RECOMMENDED this Augusta, Georgia.

1- day of October, 2008, at

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W. LEON B/tRFIELD / UNITED STATES MTRATE JUDGE