Fredrick v. Georgia Superior Clerks Cooperative Authority et al

Filing 8

ORDER granting the 2 Affidavit and Authorization for withdrawal from Inmate Account. ( Compliance to return the PLRA forms due by 12/28/2016.) The Clerk of Court is DIRECTED to serve along with a copy of this Order (1) a 42 U.S.C. § 1983 form complaint, (2) a Prisoner Trust Account Statement form, and (3) the Consent to Collection of Fees from Trust Account form. Plaintiff shall have thirty days from the service of this Order to fill out and return all three forms. Signed by Magistrate Judge G. R. Smith on 12/1/16. (wwp)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
DANTE G. FREDERICK,
Plaintiff,
v.
CV416-310
F. BARRY WILKES, J. WILLIAMS,
Defendants.

ORDER
Proceeding pro se and in forma pauperis (IFP), Dante Frederick
has filed this civil rights case against defendants Wilkes and Williams,
clerks for the Superior Court of Liberty County. Doc. 1. He alleges that
they have refused to docket a civil action that he submitted for filing in
that court. Id. His complaint is a mishmash of the Northern District’s
§ 1983 form complaint and his own handwritten creation. Id.
The federal courts have long made available to jails and prisons
specific forms for filing habeas and civil rights cases. In Williams v.
Freesemann , 2015 WL 6798946 at * 1 n. 4 (S.D. Ga. Oct. 15, 2015), this
Court noted that some inmate-litigants bypass those forms in favor of

“home-brewed” filings. Adverse factors can motivate that effort. The
Court’s forms force inmates to answer questions aimed at capturing
things like 28 U.S.C. § 1915(g) strikes and repeat ( e.g. , successive writ)
habeas filings.

See, e.g. , Bright v. Corizon Health Corp. , 2015 WL

9257155 at * 1 (S.D. Ga. Dec. 18, 2015) (“Bright’s incentive to omit his
prior case information is strong because of the § 1915(g) three-strike
bar.”). “Home-brewers” typically omit those prophylactic questions from
their filings.
Accordingly, plaintiff must resubmit his complaint on this Court’s
form within thirty days of the date this Order is served. Plaintiff is
therefore ORDERED to complete the attached Form to be Used by
Prisoners in Filing a Complaint Under the Civil Rights Act, 42
U.S.C. § 1983 , which requires that prisoner plaintiffs disclose:
(1) whether they have brought other federal lawsuits while incarcerated,
(2) whether they were allowed to proceed IFP in any such lawsuits, and
(3) whether any such suit was dismissed on the ground that it was
frivolous, malicious, or failed to state a claim. 1 Failure to comply with

1

This Court’s § 1983 complaint form, which is availed to all prisons and jails, see
http://www.gasd.uscourts.gov/pdf/prisoner1983.pdf, compels inmates to disclose prior
lawsuits. That data is necessary to enforce the “Three Strikes” rule illuminated in

2

this order within thirty days from the date this Order is served
will result in a recommendation that this case be dismissed.
Meanwhile, it is time for plaintiff to pay his fees. Frederick seeks
leave to file his case in forma pauperis (IFP). Doc. 2. After reviewing his
application, it appears plaintiff lacks sufficient resources to prepay the
filing fee. Accordingly, the Court GRANTS his request to proceed IFP.
Plaintiff is hereby advised that the procedures for filing and
litigating prisoner civil rights suits in federal court were significantly
changed by the Prison Litigation Reform Act, Pub. L. No. 104-134, 110
Stat. 1321, enacted on April 26, 1996. The Act requires all prisoners,
even those who are allowed to proceed IFP, to pay the full filing fee of
$350.00. 28 U.S.C. § 1915(b)(1). Prisoner litigants allowed to proceed
IFP must pay an initial partial filing fee of 20 percent of the greater of
the average monthly deposits to, or average monthly balance in, the

Owens v. Morales , 2015 WL 5040245 at * 1 (S.D. Ga. Aug. 25, 2015). See Boney v.
Hickey, 2014 WL 4103918 at * 4-5 (S.D. Fla. Aug. 15, 2014) (collecting cases that
discuss what constitutes a 28 U.S.C. § 1915(g) strike, three of which can lead to a
substantial curtailment on an inmate's ability to proceed IFP).
Under the question concerning whether a prisoner plaintiff has brought any
lawsuits in federal court dealing with the facts other than those involved in this
action, plaintiff must specifically describe each such lawsuit, and if there is more than
one such lawsuit, the additional lawsuits must be described on another piece of
paper.

3

prisoner’s account for the 6-month period immediately preceding the
filing of the complaint. Prison officials are then required to collect the
balance of the filing fee by deducting 20 percent of the preceding month’s
income credited to the prisoner’s account. 28 U.S.C. § 1915(b)(2). This
payment shall be forwarded to the Clerk of Court “each time the amount
in plaintiff’s account exceeds $10 until the full filing fees are paid.”

Id .

The entire filing fee must be paid even if the suit is dismissed at the
outset because it is frivolous, malicious, fails to state a claim, or seeks
monetary damages against a defendant who is immune from such relief.
In addition to requiring payment of the full filing fee, the Act now
requires prisoners to exhaust all administrative remedies before
challenging “prison conditions” in a civil action. 42 U.S.C. § 1997e; see
18 U.S.C. § 3626(g)(2). All prisoner civil rights actions filed after April
26, 1996 are subject to dismissal if the prisoner has not exhausted the
available administrative remedies with respect to each claim asserted.
Moreover, even if the complaint is dismissed for failure to exhaust, the
prisoner will still be responsible for payment of the full filing fee.
The new law also provides that a prisoner cannot bring a new civil
action or appeal a judgment in a civil action IFP if the prisoner has on

three or more prior occasions, while incarcerated, brought a civil action
or appeal in federal court that was dismissed because it was frivolous,
malicious, or failed to state a claim upon which relief may be granted.
The only exception to this “three strikes” rule is if the prisoner is in
“imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).
Because of these changes in the law, the court will give plaintiff an
opportunity, at this time, to voluntarily dismiss the complaint pursuant
to Fed. R. Civ. P. 41(a)(1). Such a voluntary dismissal will not require
plaintiff to pay the filing fee or count as a dismissal which may later
subject plaintiff to the three-dismissal rule under section 1915(g).
IT IS HEREBY ORDERED that:
(1) Plaintiff must furnish the enclosed Prisoner Trust Fund
Account Statement to the trust (financial) officer of each prison where
he has been confined for the past six months. The trust officer will
complete and sign the form and return the form and supporting
documents to plaintiff for submission to the Court. Two copies of the
form are enclosed for this purpose.
(2) Plaintiff must sign and date the enclosed

Consent to

Collection of Fees from Trust Account . By signing this form,

plaintiff gives his consent to the collection of the entire filing fee from his
prison account in installments, in accordance with the provisions of the
Prison Litigation Reform Act.
(3) Plaintiff must return both the Prisoner Trust Account
Statement and the Consent to Collection of Fees from Trust
Account to the Clerk within 30 days of this Order.
Once Frederick has complied with the conditions of this Order, the
Court will review his complaint to determine which, if any, claims are
viable and which, if any, defendants should be served with a copy of the
complaint. If no response is timely received from plaintiff, the Court will
presume that he desires to have this case voluntarily dismissed and will
dismiss this action without prejudice.
The Clerk of Court is DIRECTED to serve along with a copy of
this Order (1) a 42 U.S.C. § 1983 form complaint, (2) a Prisoner Trust
Account Statement form, and (3) the Consent to Collection of Fees from
Trust Account form. Plaintiff shall have thirty days from the service of
this Order to fill out and return all three forms .
Failure to comply with this Order within thirty days will
result in the dismissal of plaintiff s case, without prejudice.
'

It

SO ORDERED , this 1st day of December, 2016.

UNITED STATES MAGISTRATE ILJDGE
SOUTHERN DISTRICT OF GEORGIA