Newsome v. Johnson, et al.,

Filing 7

ORDER Adopting 4 Report and Recommendations, denying 2 Motion for Leave to Proceed in forma pauperis; denying as moot 3 Motion for Preliminary Injunction and 3 Motion for TRO. This action is Dismissed without prejudice. Signed by Judge Dudley H. Bowen on 11/09/12. (cmr)

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IN THE UNITED STATESDISTRICTCOURT

201?l{BV-9
AHll:21
FORTHE SOUTHERN
DISTRICTOF GEORGIA
DUBLIN DIVISION
KENNETHT. NEWSOME,II,
Plaintifi

ELER

S0.015T. ff;1,.
CF

)
)
)

cv 312-086
FNU YOTING,
ANTOINETTEJOHNSON,
)
and
Lieutenant, DIANE DEES,
)
Defendants.

)
)

ORDER

After a careful,de novoreviewof the file, the Courtconcwswith the Magistrate
("R&R'), to whichobjections
havebeenfiled (doc.
Judge's
ReportandRecommendation
without
Judge
recommended PlaintifPs
that
complaint dismissed
be
no.4). TheMagistrate
pursuant the"threestrikes"
provisionof thePrisonLitigationReformAct, 28
prejudice
to
because
Plaintiff hadbroughtat leastthreecases appeals were
that
or
U.S.C.$ 1915(g),
for
or
a
dismissed beingfrivolous for failingto state claimuponwhichreliefmaybegranted.
In addition, the MagistrateJudgefound that Plaintiff did not qualify for the "imminent
to
5(g). Finally,theMagistrate
Judge
foundthatPlaintiffwasalso
danger
exception" $ 191
namely
of
because dishonesty his complaint,
of
in
subject a recommendation dismissal
to
in
that Plaintiff failed to disclose his complainta prior lawsuitthat had beendismissed
provision.(Seedoc.no. 4.)
pursuant the'lhree strikes"
to
Plaintiff doesnot disputethat he is subjectto the threestrikes
In his objections,

for
exception
provision
that
danger
of$ 1915(g), hemaintains hequalifies theimminant
but
YoungandJohnson
have
First,Plaintiffvaguely
alleges Defendants
that
for two reasons.
he
him
threatened with harmsince filed his complaint.(Doc.no. 6, p. 5.) This allegation
whether
is immaterialto the imminentdangerinquiry which is limited to determining
physicalharm at the time he filed suit. See
of
Plaintiff was in imminentdanger serious
(l1th Cir. 1999).
v.
1193
Medberry Butler,185F.3d1189,
however, hehas
that
been subject
the
ofmultipleassaults the
in
Plaintiffalsoalleges,
pastat MaconState
PrisonandSmithState
Prison.@oc. no. 6, p. 5.) Plaintiff aversthat
have
theirintent havetheirthreats
to
carried
involved theassaults expressed
in
"Ii]ndividuals
fromoneinstitution thenext,followingIPlaintiffs] relocations."
to
outwhether bepassed
it
(Id. at4-5.) According Plaintiff,afterhewastransferred Telfair State
Prison("TSP")
to
to
Robinson,
who 'had just physicallyassaulted
another
in August2012,an inmatenamed
in
that
Robinson
threatened
inmate,"wasplaced his cell. (Id. at 2.) Plaintiffasserts inmate
that
Plaintiffreports,
however,
himand,onAugust23,2012,physicallyassaultedhim.0d.)
Youngabouttheassault, wasmovedto another with a
he
cell
whenhe notifiedDefendant
that
danger
whenhe filed
dilferentroommate.
Gd.) Plaintiffconcludes hewasin imminent
his complaint
because wasin a'two mancellwith a 'roommate'whomat anytimecould
he
pattern."(ld. at 4-5.)
in
assault
haveparticipated this on-going
As the MagistrateJudgeexplainedin the R&R, however,"generaland conclusory
physicalharm."
the
allegations not sufficientto establish imminentthreatof serious
are
(citations
14,
v.
CV
2006WL16877 at*2 (S.D. June 2006)
52,
Ga.
Skillern Jackson, 606-49,
him
that
assaulted at TSP,he fails to
omitted). While Plaintiff alleges inmateRobinson

pattem,"andindeed
was
states
that
allegethatthe assault linkedto any"on-goingassault
inmate Robinsonhad just assaulted
someone
else before being moved into his cell.
at
Plaintiff s allegation hewasatrisk of assault hiscurrent
that
by
roommate TSP
Moreoveq
particularly Plaintiffdoes allege
prior assaults conclusory best,
not
is
at
as
because these
of
everthreatened harmed
or
him. In short,Plaintiff s belated
allegations
thatthe roommate
he
danger thetime he filed his complaint.
at
fall shortof demonstrating wasin imminent
Plainti{fs remaining
objections reassertions factsthat the Magistrate
are
of
Judge
properlyfounddid not satisry standard showing
for
imminentdanger areotherwise
the
or
provideno basis for departing
from the
without merit. In sum, PlaintifFsobjections
in
his
are
the
conclusions the R&R. As a result, objections OVERRULED. Accordingly,
R&R is ADOPTED astheopinionof the Court. Therefore,
Plaintiff s motionto proceed
in .fonnapauperis is DENIED (doc. no. 2), and this action is DISMISSED without
prejudice.' If Plaintiff wishesto proceed
with the claimsraisedin this lawsuit,he must
initiate a new lawsuit,which would requiresubmission a new complaint. Dupreev.
of
(llth Cir.2002)
1236
curiam).
Palmer, F.3d1234,
284
Qter
SOORDERED
this

rAs this caseis now closed,
for
injunctionanda
Plaintiffs requests a preliminary
orderareDENIED AS MOOT. (Doc.nos.3-1,3-2.)
temporary
restraining