Scott v. Corrections Corporation of America et al

Filing 4

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the 1 Complaint filed by Lee Dixon Scott, III be DISMISSED, without prejudice. I further RECOMMEND that the Court DENY Plaintiff leave to appeal in forma pauperis. 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 (Objections to R&R due by 12/21/2015). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 12/7/2015. (ca)

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

LEE DIXON SCOTT, III,
Plaintiff,

CIVIL ACTION NO.: 5:15-cv-82

v.
CORRECTIONS CORPORATION OF
AMERICA; JUDITH SMITH; DONNA M.
ALVARDO; JOHN D. CORRENTI; ROBERT
J. DENNIS; MARK A. EMKES; DAMON
HINNINGER; C. MICHAEL JACOBI; ANNE
L. MARIUCCI; THURGOOD MARSHALL,
JR.; JOHN R. PRANN, JR.; JOSEPH V.
RUSSELL; JOHN D. FERGUSON; COFFEE
COUNTY, GEORGIA; CITY OF NICHOLS,
GEORGIA; and GEORGIA DEPARTMENT
OF CORRECTIONS,
Defendants.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, an inmate at Coffee Correctional Facility in Nicholls, Georgia, has filed this
action against Corrections Corporation of America as well as several other Defendants. (Doc. 1.)
Along with his Complaint, Plaintiff filed a Motion to Proceed in Forma Pauperis. 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. After
review, Plaintiff’s Motion to Proceed In Forma Pauperis is DENIED.

It is my

RECOMMENDATION that Plaintiff’s Complaint, be DISMISSED, without prejudice,
pursuant to 28 U.S.C. § 1915(g), and that Plaintiff be DENIED in forma pauperis status on
appeal.

PLAINTIFF’S ALLEGATIONS
On October 19, 2015, Plaintiff filed this action pursuant to 42 U.S.C. § 1983
(“Section 1983”) contesting certain conditions of his confinement while housed at Coffee
Correctional Facility.

(Doc. 1, pp. 5–6.)

Specifically, Plaintiff contends that Defendants

violated his Eighth Amendment rights by providing him with a nonfunctional plumbing system
in his prison cell from September 28, 2014 through October 22, 2014. Id. He contends that he
had to endure feces and urine in his cell for three and a half weeks and that due to the
substandard sanitation, he developed rashes. Id. He seeks monetary damages as well as an
injunction against the prison. (Id. at p. 6.)
DISCUSSION
I.

Dismissal of Plaintiff’s Complaint Pursuant to Section 1915(g)
A prisoner such as Plaintiff attempting to proceed in forma papueris in a civil action in

federal court must comply with the mandates of the PLRA. Pertinently, 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.
The Eleventh Circuit explained that “[t]his provision of the PLRA, ‘commonly known as
the ‘three strikes’ provision,’ requires frequent filer prisoners to prepay the entire filing fee
before federal courts may consider their lawsuits and appeals.” Rivera v. Allin, 144 F.3d 719,

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723 (11th Cir. 1998) (quoting Lyon v. Krol, 127 F.3d 763, 764 (8th Cir.1997)). 1 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 Section 1915(g). See Rivera, 144 F.3d at 723 (dismissal
for failure to disclose prior litigation is “precisely the type of strike that Congress envisioned
when drafting section 1915(g)”); 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”).
The Eleventh Circuit has held that a prisoner barred from proceeding IFP due to the
“three strikes” provision in § 1915(g) must pay the complete $350 filing fee when he initiates
suit. Vanderberg v. Donaldson, 259 F.3d 1321, 1324 (11th Cir. 2001). Therefore, the proper
procedure for a district court faced with a prisoner who seeks IFP status but is barred by the
“three strikes” provision is to dismiss the complaint without prejudice. Dupree v. Palmer, 284
F.3d 1234, 1236 (11th Cir. 2002).
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):
1) Scott v. Norcross Police Dep’t, et al., Order, 1:12-cv-3593 (N.D. Ga. Feb. 21, 2013), ECF
No. 8 (dismissal for failure to state a claim);
2) Scott v. Conway, et al., Order, 1:12-cv-3582 (N.D. Ga. Feb. 22, 2013), ECF No. 10
(dismissal for failure to state a claim);
3) Scott v. Frazier, et al., Order, 3:13-cv-56 (S.D. Ga. Oct. 31, 2013), ECF No. 35 (dismissal
as sanction for failure to truthfully disclose litigation history); and

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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.

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4) Scott v. Smith, et al., Order, 5:13-cv-114 (S.D. Ga. Dec. 19, 2013), ECF No. 4 (dismissal
for failure to follow court order regarding prosecution of case).
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)). Moreover, a harm that has already occurred or danger that has now passed cannot justify
skirting the three strike bar.

Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir.1999)

(“prisoner’s allegation that he faced imminent danger sometime in the past is an insufficient
basis to allow him to proceed in forma pauperis pursuant to the imminent danger exception to the
statute.”); see also Abdul–Akbar v. McKelvie, 239 F.3d 307, 315 (3d Cir. 2001) (“By using the
term ‘imminent,’ Congress indicated that it wanted to include a safety valve for the ‘three
strikes’ rule to prevent impending harms, not those harms that had already occurred.”).

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Plaintiff should not be excused from prepaying the filing fee because of the imminent
danger of serious physical injury. His Complaint makes no allegation that Defendants’ alleged
actions pose a risk of future physical danger. Indeed, according to his allegations, the unsanitary
conditions in his cell were remedied over a year ago in October 2014. (Doc. 1, p. 5.) Therefore,
Section 1915(g) bars Plaintiff from proceeding in forma pauperis in this case. Should Plaintiff
choose to prosecute these claims while incarcerated, he must bring a separate action and pay the
full filing fee. 2
II.

Leave to Appeal in Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. 3

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
2

A “district court can only dismiss an action on its own motion as long as the procedure employed is fair.
. . . To employ fair procedure, a district court must generally provide the plaintiff with notice of its intent
to dismiss or an opportunity to respond.” Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1336 (11th Cir. 2011)
(citations and internal quotations marks omitted). A Magistrate Judge’s Report and Recommendation
(“R&R”) provides such notice and opportunity to respond. See Shivers v. Int’l Bhd. Of Elec. Workers
Local Union, 349, 262 Fed. Appx. 121, 125, 127 (11th Cir. Jan. 8, 2008) (indicating that a party has
notice of a district court’s intent to sua sponte grant summary judgment where a magistrate judge issues a
report recommending the sua sponte granting of summary judgment); Anderson v. Dunbar Armored, Inc.,
678 F. Supp. 2d 1280, 1296 (N.D. Ga. 2009) (noting that R&R served as notice that claims would be sua
sponte dismissed). This Report and Recommendation constitutes fair notice to Plaintiff that his suit is
barred and due to be dismissed. As indicated below, Plaintiff will have the opportunity to present his
objections to this finding, and the District Court will review de novo properly submitted objections. See
28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72; see also Glover v. Williams, No. 1:12-CV-3562-TWT-JFK,
2012 WL 5930633, at *1 (N.D. Ga. Oct. 18, 2012) (explaining that magistrate judge’s report and
recommendation constituted adequate notice and petitioner’s opportunity to file objections provided a
reasonable opportunity to respond).
3

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

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(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).
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. 28 U.S.C. § 1915(g). Thus, the Court
should deny him in forma pauperis status on appeal.
CONCLUSION
Plaintiff’s Motion to Proceed In Forma Pauperis is DENIED.

I RECOMMEND

Plaintiff’s Complaint be DISMISSED, without prejudice. I further RECOMMEND that the
Court DENY Plaintiff leave to appeal in forma pauperis.
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

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served upon all other parties to the action. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.
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, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final
judgment entered by or at the direction of a District Judge. The Clerk of Court is DIRECTED
to serve a copy of this Report and Recommendation upon Plaintiff.
SO ORDERED, this 7th day of December, 2015.

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

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