Lott v. Kemp et al

Filing 6

ORDER denying 2 Motion for Leave to Proceed in forma pauperis; adopting 3 Report and Recommendations; Objections to the Report and Recommendations are Overruled and this civil action is Dismissed without prejudice. Signed by Judge Dudley H. Bowen on 2/20/2013. (dhh)

r.s.
ur{ilf,i, i
r.r,r
IN THE UNITEDSTATESDISTRICTCOURT

Ii]J FFB

DISTRICTOF GEORGIA
FORTHE SOUTHERN
DUBLIN DIVISION

i]LERK
-\

MACKHENRY LOTT.
Plaintiff,

cv 313-002
RALPH KEMP, Warden,et al.,
Defendants.

ORDER

with the Magistrate
After a careful,de novoreviewof the file, the Courtconcurs
("R&R"), to whichobjections
havebeenfiled (doc.
Judge's
RepodandRecommendation
be
without
no. 5). TheMagistrate
Judge
recommended Plaintiff s complaint dismissed
that
prejudice
pursuant the"threestrikes"
provision thePrisonLitigationReformAct, 28
to
of
that
as
because
Plaintiffhadbrought leastthreecases weredismissed
at
U.S.C.$ 1915(g),
frivolous.In addition,the Magistrate
Judgefoundthat Plaintiff did not qualifr for the
foundthatPlaintiff
"imminentdanger
Finally,theMagistrate
Judge
exception" $ 1915(g).
to
in
because
ofdishonesty his complaint,
wasalsosubject a recommendation dismissal
to
of
multipleprior federal
lawsuits.(Seedoc.no. 3.)
namelythatPlaintifffailedto disclose
and
Plaintiffs objections lenglhyand largelynonsensical, mostly consistof
are
that
offactualallegations
as
recitations
ofcaselaw andlegalstandards, well astherepetition
to
however, the Magistrate
Judge
in
the Magistrate
addressed the R&R. Plaintiffobjects,
to
that
Judge'sdetermination he doesnot fall within the "imminentdanger"exception

place
for
treatment painathiscurrent
and
that
to
$ 1915(g), appears allege heis beingdenied
("MSP"),asa resultof whichhehassuffered
painand
MaconState
Prison
ofincarceration,
Plaintiffappeared make
"mentalandernotional
to
injury." (Doc.no.5,pp. 5-6,8.) Because
the
a similar allegation his complaint, MagistrateJudgenotedthat, evenif a claim
in
primarily
inadequate
care MSPcouldbejoinedin this lawsuit-which
at
conceming
medical
Correctional
Facilityin Juneof 2009-Plaintiffs
concems
alleged
misconduct Wheeler
at
imminent
for
allegations
aboutbeingdeniedtreatment pain weretoo vagueto establish
danger
ofseriousphysical ury. (999doc.no. 3, p. 3 n.6.)
inj
denial
WhilePlaintiffhas
with slightlymoredetailabout purported
the
nowretumed
at
analysis holds.Assuming, theMagistrate
still
as
oftreatment MSP,theMagistrate
Judge's
joined in this lawsuit,
Judge
did, that claimsaboutoccurrences MSP couldbe properly
at
physical
PlaintifTdoes allege his condition deteriorating heis suffering
is
because
not
that
or
imminent
injury asa result,thedenialof painmedication
aloneis insufficientto establish
physical
danger serious
of
injury. SeeSkillemv. Paul,202F.
App'x 343,344(11thCir.
insufficient establish
imminent
alone
to
2006)(percurian) (notingthat
denial
ofmedication
plaintiff "neveralleged
that he suffered physicalinjury as a
danger, part,because
in
any
v.
CV
resultofnot receiving medication."); alsoWallace Strength, 109-039,2009
see
the
imminentdanger
WL 1406396, x2 (S.D.Ga.May 19,2009)(plaintifffailedto establish
at
that
is
he
based denialofpain medication
on
because did not contend "his condition rapidly
or
any
deteriorating thathehassuffered sortofillnessor infectionasa resultofthe alleged
fall
allegations
In
denialof treatment lack of medication."). short,Plaintiffs belated
and
at
danger thetime he filed his complaint.
shortof demonstrating wasin imminent
he

of
objections reassertions factsthat the
are
As notedearlier,Plaintiffs remaining
for
imminentdanger
properly
founddid not satis$thestandard showing
Magistrate
Judge
providenobasis departing
for
withoutmerit. In sum,Plaintiff s objections
or areotherwise
from the conclusions the R&R. As a result, his objectionsare OVERRULED.
in
Judge ADOPTED asthe
is
of
Accordingly, Report RecommendationtheMagistrate
the
and
Plaintiffs requestto proceedin forma pauperis is
opinion of the Court. Therefore,
to
DENIED, and this civil actionis DISMISSEDwithoutprejudice.rIf Plaintiffwishes
whichwould
proceed
he
with the claimsraised this lawsuit, mustinitiatea new lawsuit,
in
v.
284
require
submission a newcomplaint. Duoree Palmer, F.3d 12J4,1236(l lth Cir.
of
(per curian).
2O02)
1 nl'tSO ORDERED this .4q' day of February,2013, at Augusta, Georgia.

rln his objections,Plaintiff has also submittedrequests injunctive relief and the
for
(Seedoc.no. 5, pp. 12-15,l6-18.) As this case now dismissed,
is
appointment
ofcounsel.
thesereouests MOOT.
are