Edwards v. Coffee County Facility et al

Filing 36

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Plaintiff's 1 Complaint filed by Randy Edwards, without prejudice, pursuant to 28 U.S.C. § 1915(g) and that the Court DENY Plaintiff in forma pauperis status on ap peal. Moreover, all pending Motions should be DENIED AS MOOT. Any party seeking to object to this Report and Recommendation is ORDERED to file specific written objections within fourteen (14) days of the date on which the Report and Recommendation is entered (Objections to R&R due by 1/13/2016). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 12/30/2015. (ca)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
WAYCROSS DIVISION

RANDY EDWARDS,
Plaintiff,

CIVIL ACTION NO.: 5:15-cv-34

v.
COFFEE COUNTY FACILITY;
CORRECTIONS CORPORATION OF
AMERICA; GRADY PERRY; JOHN PAUL;
GEORGIA DEPARTMENT OF
CORRECTIONS; HOMER BRYSON;
STATE OF GEORGIA; NATHAN DEAL;
STATE BOARD OF PARDONS AND
PAROLE,
Defendants.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, currently an inmate at Dodge State Prison in Chester, Georgia, filed this action
while an inmate at Coffee Correctional Facility in Nicholls, Georgia, pursuant to 42 U.S.C.
§ 1983. In his Complaint, he contested certain conditions of his confinement while he was
housed at Coffee Correctional Facility. After review, the Court DENIES Plaintiff’s Motion to
Amend his Complaint and add a Defendant, (doc. 32.). The Court VACATES its June 12, 2015,
Order, (doc. 8), and November 10, 2015, Order, (doc. 29), and DENIES Plaintiff’s Motion to
Proceed In Forma Pauperis. See McKenzie v. United States Dep’t of Justice, 143 F. App’x 165
(11th Cir. 2005) (district court may revisit earlier order allowing prisoner suit to proceed).
Further, I RECOMMEND that the Court DISMISS Plaintiff’s Complaint, without prejudice,
pursuant to 28 U.S.C. § 1915(g) and the Court DENY Plaintiff in forma pauperis status on
appeal. Moreover, all pending Motions should be DENIED AS MOOT.

PLAINTIFF’S ALLEGATIONS
Plaintiff filed this Complaint on May 13, 2015, while he was housed at Coffee
Correctional Facility. (Doc. 1.) In his Complaint, Plaintiff contended that the water at Coffee
Correctional was dirty. Id. He sought an “emergency injunction” ordering that the facility use
bottled water. (Doc. 1, p. 4.) Plaintiff did not request monetary relief. Id. Plaintiff was
subsequently transferred to Dodge State Prison in Chester, Georgia. (Doc. 32.) He has now filed
another request for an “Emergency Injunction” and a request to add Defendants. Id. Through
this pleading, Plaintiff seeks to add unrelated claims and Defendants to this action. Generally,
Plaintiff contends that there are threats to his safety at Dodge State Prison from correctional
officers. Id.
DISCUSSION
I.

Motion to Amend Complaint through Request for Emergency Injunction and to
Add Defendants (Doc. 32)
In his Request for Emergency Injunction and to Add Defendants, Plaintiff seeks to add

claims against new defendants regarding threats to his safety at Dodge State Prison.

Id.

However, these claims are entirely unrelated to Plaintiff’s original claims which pertain to the
water at Coffee Correctional Facility.

Plaintiff cannot pursue unrelated claims in one

Section 1983 action. Smith v. Owens, No. 14-14039, 2015 WL 4281241, at *4 (11th Cir.
July 16, 2015) (upholding this Court’s dismissal of unrelated claims pursuant to Federal Rule of
Civil Procedure 20(a), which will allow the joinder of claims if the claims arise “out of the same
transaction, occurrence, or series of transactions or occurrences” and if “any question of law or
fact common to all defendants will arise in the action.”). Accordingly, Plaintiff will not be
allowed to amend his Complaint to add these new unrelated claims and unrelated defendants to

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this action.

Accordingly, his motion to amend his Complaint by way of his Request for

Emergency Injunction and to Add Defendants is DENIED.
II.

Section 1915(g)
A prisoner proceeding in a civil action against officers or employees of government

entities must comply with the mandates of the Prison Litigation Reform Act (“PLRA”), 28
U.S.C. § 1915. 28 U.S.C. § 1915(g) of the PLRA provides:
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 3 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.
28 U.S.C. § 1915(g). Furthermore, dismissals for providing false filing-history information and
failing to comply with court orders both fall under the category of “abuse of the judicial
process,” which the Eleventh Circuit has held to be a “strike-worthy” form of dismissal under
§ 1915(g). See Rivera v. Allin, 144 F.3d 719, 723 (11th Cir. 1998); Malautea v. Suzuki Motor
Co., 987 F.2d 1536, 1544 (11th Cir.1993) (characterizing failure to comply with court orders as
“abuse of the judicial process”). Section 1915(g) “requires frequent filer prisoners to prepay the
entire filing fee before federal courts may consider their lawsuits and appeals.” Rivera, 144 F.3d
at 731. The Eleventh Circuit upheld the constitutionality of Section 1915(g) in Rivera. In so
doing, the Court concluded that Section 1915(g) does not violate an inmate’s rights to access to
the courts, to due process of law, or to equal protection, or the doctrine of separation of powers.
Rivera, 144 F.3d at 721–27.
A review of Plaintiff=s history of filings reveals that he has brought at least three civil
actions or appeals which were dismissed and count as strikes under Section 1915(g). Indeed, the

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Northern District of Georgia has repeatedly noted Plaintiff’s propensity for filing frivolous
lawsuits. See, e.g., Order, Edwards v. Floyd Cty. Police Dep’t, 4:15-cv-108 (N.D. Ga. June 24,
2015), ECF No. 2, p. 2 (listing seven cases filed by Plaintiff that were dismissed as frivolous,
malicious, or for failure to state a claim and dismissing Plaintiff’s lawsuit under the three strikes
provision of Section 1915(g)). Because Plaintiff has filed at least three previously dismissed
cases or appeals which qualify as strikes under Section 1915(g), Plaintiff may not proceed in
forma pauperis in this action unless he can demonstrate that he meets the “imminent danger of
serious physical injury” exception to Section 1915(g).
“In order to come within the imminent danger exception, the Eleventh Circuit requires
‘specific allegations of present imminent danger that may result in serious physical harm.’”
Odum v. Bryan Cty. Judicial Circuit, No. CV407-181, 2008 WL 766661, at *1 (S.D. Ga. Mar.
20, 2008) (quoting Skillern v. Jackson, No. CV606-49, 2006 WL 1687752, at *2 (S.D. Ga. June
14, 2006) (citing Brown v. Johnson, 387 F.3d 1344, 1349 (11th Cir. 2004))). General and
conclusory allegations not grounded in specific facts indicating that injury is imminent cannot
invoke the Section 1915(g) exception.

Margiotti v. Nichols, No. CV306-113, 2006 WL

1174350, at *2 (N.D. Fla. May 2, 2006). “Additionally, ‘it is clear that a prisoner cannot create
the imminent danger so as to escape the three strikes provision of the PLRA.’” Ball v. Allen,
No. 06-0496, 2007 WL 484547, at *2 (S.D. Ala. Feb. 8, 2007) (citing Muhammad v.
McDonough, No. CV306-527-J-32, 2006 WL 1640128, at *1 (M.D. Fla. June 9, 2006)).
Plaintiff should not be excused from prepaying the filing fee because of the imminent
danger of serious physical injury. Rather, Plaintiff’s Complaint is a quintessential example of
the conclusory allegations that fail to meet the imminent danger exception to the three strikes
rule. Therefore, Section 1915(g) bars him from proceeding in forma pauperis in this case.

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Should Plaintiff choose to prosecute these claims while incarcerated, he must bring a separate
action and pay the full filing fee. 1
III.

Leave to Appeal In Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. 2

Though

Plaintiff has, of course, not yet filed a notice of appeal, it would be appropriate to address these
issues in the Court’s order of dismissal. Fed. R. App. P. 24(a)(3) (trial court may certify that
appeal is not take in good faith “before or after the notice of appeal is filed”).
An appeal cannot be taken in forma pauperis if the trial court certifies that the appeal is
not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this
context must be judged by an objective standard. Busch v. Cty. of Volusia, 189 F.R.D. 687, 691
(M.D. Fla. 1999). A party does not proceed in good faith when he seeks to advance a frivolous
claim or argument. See Coppedge v. United States, 369 U.S. 438, 445 (1962). A claim or
argument is frivolous when it appears the factual allegations are clearly baseless or the legal
theories are indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v.
Gross, 984 F.2d 392, 393 (11th Cir. 1993). Or, stated another way, an in forma pauperis action
is frivolous and, thus, not brought in good faith, if it is “without arguable merit either in law or
fact.” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown v. United States,
Nos. 407CV085, 403CR001, 2009 WL 307872, at *1–2 (S.D. Ga. Feb. 9, 2009).
1

Moreover, even if Plaintiff were not barred by Section 1915(g), his Complaint, which solely sought
injunctive relief regarding the water at Coffee Correctional, has now been rendered moot due to his
transfer to Dodge State Prison. An inmate’s claim for injunctive relief against prison officials is subject
to dismissal for mootness when the prisoner is transferred to another prison and is no longer subject to the
condition for which injunctive relief is sought. Spears v. Thigpen, 846 F.2d 1327, 1328 (11th Cir. 1988)
(per curiam); Wahl v. McIver, 773 F.2d 1169, 1173 (11th Cir. 1985) (per curiam ) (“Absent class
certification, an inmate’s claim for injunctive relief and declaratory relief in a section 1983 action fails to
present a case or controversy once the inmate has been transferred.”). This provides yet another ground
for dismissal of Plaintiff’s claims.
2

A certificate of appealablity is not required in this Section 1983 action.

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Based on the above analysis of Plaintiff’s action, there are no non-frivolous issues to
raise on appeal, and an appeal would not be taken in good faith. Moreover, as a “three striker”,
Plaintiff is not only barred from filing a civil action in forma pauperis, he is also barred from
filing an appeal in forma pauperis while he is a prisoner. Thus, the Court should deny him in
forma pauperis status on appeal.
CONCLUSION
For the foregoing reasons, the Court DENIES Plaintiff’s Motion to Amend his
Complaint and Add a Defendant, (doc. 32). The Court VACATES its June 12, 2015, Order,
(doc. 8), and November 10, 2015, Order, (doc. 29), and DENIES Plaintiff’s Motion to Proceed
In Forma Pauperis. Further, I RECOMMEND that the Court DISMISS Plaintiff’s Complaint,
without prejudice, pursuant to 28 U.S.C. § 1915(g) and that the Court DENY Plaintiff in forma
pauperis status on appeal. Moreover, all pending Motions should be DENIED AS MOOT.
Any party seeking to object to this Report and Recommendation is ORDERED to file
specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the Complaint must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action.
Upon receipt of objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report to which
objection are made and may accept, reject, or modify in whole or in part, the findings or
recommendations made by the Magistrate Judge.

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Objections not meeting the specificity

requirement set out above will not be considered by a District Judge. The Clerk of Court is
DIRECTED to serve a copy of this Report and Recommendation upon Plaintiff.
SO ORDERED and REPORTED and RECOMMENDED, this 30th day of December,
2015.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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