Butler et al v. Oliver et al
ORDER vacating 5 Report and Recommendation; denying 2 Motion to Certify Class; and dismissing as moot 8 Motion for Extension of Time to Amend. Plaintiff is directed to submit an Amended Complaint by 12/8/2023. The Clerk is directed to send Plaintiff a blank Pro Se 14 Complaint form with this Order. Signed by Magistrate Judge Christopher L. Ray on 11/14/2023. (gmh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
DARRYL PERNELL BUTLER, )
and other inmates similarly
TYRONE OLIVER, et al.,
The Court previously screened pro se plaintiff Darryl Pernell
Butler’s purported class complaint. See generally doc. 5. It explained
that Butler is subject to 28 U.S.C. § 1915(g)’s three-strikes provision.
See id. at 2-3.
In considering whether he qualified for the “imminent
danger” exception to the three-strikes bar, the Court explained that, as a
pro se prisoner, he could not assert class-based claims. Id. at 4. The
Court recommended that those claims be dismissed and his Motion for
Class Certification be denied.
The Court then afforded him an
opportunity to submit an amended pleading, asserting only his own
claims, to determine whether he qualified to proceed in forma pauperis.
Id. at 4-5.
After that Report and Recommendation entered, he
consented to the undersigned’s plenary authority.
See doc. 6.
Order and Report and Recommendation is, therefore, VACATED, doc. 5,
and replaced with this Order.
This Court has recognized that Butler is subject to the “threestrikes” provision of 28 U.S.C. § 1915(g).
See, e.g., Butler v. Kaplan,
CV422-211, doc. 4 (S.D. Ga. Sept. 6, 2022).
His Complaint also expressly
concedes that he is subject to the restrictions of 28 U.S.C. § 1915(g).
Doc. 1 at 3. As explained below, it is clear that he is.
Under the Prison Litigation Reform Act (PLRA), an indigent
prisoner is barred from proceeding IFP after filing three meritless
28 U.S.C. § 1915(g). The relevant provision states:
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 three 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.
Id. The Court has identified at least three of Butler’s prior cases that
count as “strikes” under the PLRA. See Butler v. Casterline, CV103-112,
doc. 4 at 4 (M.D. Ga. Sept. 26, 2003) (dismissing case “as frivolous
pursuant to 28 U.S.C. § 1915A.”); Butler v. Brown, CV196-087, doc. 3
(M.D. Ga. May 23, 1996) (dismissing “complaint as frivolous.”); Butler v.
Kelso, CV195-190, doc 2 (M.D. Ga. Oct. 20, 1995) (dismissing action “as
frivolous”); see also Butler v. Yankello, CV522-0149, doc. 5 at 2 (M.D. Ga.
May 20, 2022) (“A review of court records on the Federal Judiciary’s
Public Access to Court Electronic Records (“PACER”) database reveals
that Plaintiff has filed several federal lawsuits and that more than three
of his actions or appeals have been dismissed as frivolous, malicious, or
for failure to state a claim,” and collecting cases). The Court is satisfied
that, at least, the three dispositions cited above count as § 1915(g) strikes.
See, e.g., Daker v. Comm’r, Ga. Dept. of Corrs., 820 F.3d 1278, 1283 (11th
Cir. 2016) (holding that the expressly enumerated grounds, i.e.
“frivolous,” “malicious,” and “fails to state a claim upon which relief may
be granted,” “are the only grounds that can render a dismissal a strike.”);
Daker v. Keaton, 787 F. App’x 630, 633 (11th Cir. 2019) (“[T]o conclude
an action or appeal was dismissed as frivolous, the dismissing court had
to have made some express statement that indicated the action or appeal
was frivolous, meaning it lacked an arguable basis in law or fact.”).
Butler, therefore, had accrued at least three § 1915(g) strikes before he
filed this action.
PLRA does provide an exception to the “three strikes” provision if
the prisoner is in “imminent danger of serious physical injury.” 28
U.S.C. § 1915(g). To qualify for the exception, a plaintiff must allege
more than a speculative or generalized risk. See Sutton v. Dist. Atty’s
Office, 334 F. App’x 278, 279 (11th Cir. 2009) (general assertions of risk
are “insufficient to invoke the exception to § 1915(g) absent specific fact
allegations of ongoing serious physical injury, or of a pattern of
misconduct evidencing the likelihood of imminent serious physical
injury.” (internal quotation omitted)); see also Abdullah v. Migoya, 955 F.
Supp. 2d 1300, 1307 (S.D. Fla. 2013) (“A plaintiff must provide the court
with specific allegations of present imminent danger indicating that a
serious physical injury will result if his claims are not addressed.”).
The need for the Court to consider whether Butler qualifies under
the imminent-danger exception raises the second procedural defect in his
pleadings. As indicated above, Butler seeks to pursue this case as a
class action, and many of his allegations are not specific to him. See,
e.g., doc. 1 at 27 (discussing other inmates who suffered from alleged food4
However, “[i]t is plain error to permit an imprisoned
litigant who is unassisted by counsel to represent his fellow inmates in a
class action.” Wallace v. Smith, 145 F. App’x 300, 302 (11th Cir. 2005)
(internal quotation marks, alterations, and citation omitted). Butler’s
class-based claims are, therefore, DISMISSED and his Motion for Class
Certification, doc. 2, is DENIED. Since the class-related allegations are
dismissed, the Court will permit Butler an opportunity to amend his
Complaint to omit the class-based allegations before it determines
whether he otherwise qualifies to proceed in forma pauperis.
Accordingly, Butler is DIRECTED to submit an Amended
Complaint asserting only his own claims, and omitting any class-based
claims, by no later than December 8, 2023. Since the prior Order and
Report and Recommendation has been vacated, and the Court provides
additional time for Butler to submit his Amended Complaint, his request
for additional time is DISMISSED as moot. Doc. 8. To facilitate his
preparation of the Amended Complaint, the Clerk is DIRECTED to send
him a blank Form Pro Se 14 (Complaint for Violation of Civil Rights
Butler is advised that his amended complaint will
supersede the current operative complaint and therefore must be
complete in itself. See Varnes v. Local 91, Glass Bottle Blowers Ass’n of
U.S. & Canada, 674 F.2d 1365, 1370 n. 6 (11th Cir. 1982). Butler is
further advised that failure to timely submit his amended complaint may
result in a recommendation that this case be dismissed for failure to obey
a court order or failure to prosecute. See Fed. R. Civ. P. 41(b).
SO ORDERED, this 14th day off November, 2023.
PHER L. RAY
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?