Baez v. Sabine et al

Filing 8

ORDER ADOPTING 4 Report and Recommendations. The Court Overrules Plaintiff's objections, dismisses Plaintiff's complaint without prejudice and denies leave to appeal in forma pauperis. This case stands CLOSED. Signed by Chief Judge J. Randal Hall on 08/31/2017. (pts)

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION

ROBERTO BAEZ,

Plaintiff,

CIVIL ACTION NO.: 6:16-cv-170

ROY SABINE; FNU SMITH; and FNU
TOLBERT,
Defendants.

ORDER

Presently before the Court are Plaintiffs Objections, (doc. 5), to the Magistrate Judge's
Report and Recommendation dated February 14, 2017, (doc. 4). Plaintiff has also filed pleadings
labeled as a Motion to Amend/Correct Complaint, (doc. 6), and an "Amended Complaint,"

(doc. 7), which the Court construes as additional Objections to the Magistrate Judge's Report and

Recommendation.1

After an independent and de novo review of the entire record, the

1 "Federal courts sometimes will ignore the legal label that a pro se litigant attaches to a motion and
recharacterize the motion in order to place it within a different legal category." Retic v. United States,

215 F. App'x 962, 964 (11th Cir. 2007) (quoting Castro v. United States, 540 U.S. 375, 381 (2003)).
Federal courts "may do so in order to avoid an unnecessary dismissal, to avoid inappropriately stringent
application of formal labeling requirements, or to create a better correspondence between the substance of
a pro se motion's claim and its underlying legal basis." Id (quoting Castro, 540 U.S. at 381-82).
Although Plaintiff labeled his pleading as a "Motion to Amend/Correct Complaint" and submitted an
"Amended Complaint" with that Motion, a review of those pleadings reveals that Plaintiff is simply
reiterating his Objections to the Magistrate Judge's Report and Recommendation.
First, Plaintiffs "Motion to Amend", (doc. 6), is identical to his concurrently filed Objection to

the Magistrate Judge's Report and Recommendation, (doc. 5). Second, Plaintiff states no new factual
allegations in his "Motion to Amend" or his "Amended Complaint." Instead, in his "Amended
Complaint", Plaintiff first argues that the Magistrate Judge did not construe his Complaint liberally.
(Doc. 7, pp. 1-4.) Next, Plaintiff reasserts his claim that he suffers from high blood pressure and explains
the health risks associated with high blood pressure. (Id at p. 4.) Plaintiff then cites Brown v. Johnson,
387 F.3d 1344 (11th Cir. 2004), to support his argument that he is in imminent danger of serious physical

injury, and therefore, should be permitted to proceed in forma pauperis in this action. (Id at pp. 5-7.)
Finally, Plaintiff reasserts his argument that Defendants were deliberately indifferent to his serious

undersigned OVERRULES Plaintiffs Objections, CONCURS with the Magistrate Judge's

Report and Recommendation, and ADOPTS the Report and Recommendation as the opinion of
the Court.
BACKGROUND

Plaintiff filed this cause of action pursuant to 42 U.S.C. § 1983 to contest certain
conditions of his confinement at Georgia State Prison in Reidsville, Georgia. (Doc. 1.) In his

Complaint, Plaintiff alleges he suffers from a number of medical conditions that cause him
chronic pain. (Id at pp. 11-12.) To manage his pain, Plaintiff must take pain medication daily.
"[P]rior [to] being transferred [to Georgia State Prison,] Plaintiff was incarcerated at Johnson
State Prison where he did not have any problems with his pills." (Id at p. 13.) During Plaintiffs

incarceration at Johnson State Prison, his pain medication "was administered to him as directed
by the label and [was] ... 97 percent effective" to alleviate his pain. (Id.) However, upon his
arrival at Georgia State Prison, Plaintiff received his medication in the form of a white powder.
(Id.)

Plaintiff avers that Defendant Sabine "adopted his own policy . . . concerning the

medication . . . [which required] Defendant Smith [to] produce a white powder in a small plastic
bag" instead of the pills Plaintiff received at Johnson State Prison. (Id.) Plaintiff maintains that
Defendants expect "prisoners to accept... the white powder in the small plastic bag that nobody
know[s] where it come from [sic]." (Id.) On November 30, 2015, after refusing to take pain

medication in powder form, Plaintiff requested that Defendant Sabine provide him pain pills.
(Id.) However, Plaintiff received no response to his request or any pain pills. (Id.) Although

medical needs. (Id. at pp. 7-10.) Plaintiff does not present any new facts, assert any new claims against
Defendants, or seek to add any new claims against any new parties to this lawsuit through his "Motion to
Amend" or within his "Amended Complaint." Accordingly, these pleadings are more appropriately
classified as additional Objections to the Magistrate Judge's Report and Recommendation. Even if
Plaintiffs Complaint can be considered amended through this pleading, his Complaint is still subject to
dismissal for the reasons stated in the Magistrate Judge's Report and Recommendation and herein.

Defendant Smith continued to offer Plaintiff pain medication in powder form, "Plaintiff refused

to take [the] white powder."

(Id at p. 15.)

As a result, Plaintiffs health condition has

deteriorated. (Id.)

Plaintiff further avers that when he requested to be sent to Augusta State Medical Prison
for treatment, Defendant Tolbert became angry and changed Plaintiffs Zantac prescription to

Prilosec. (Id at p. 16.) In addition to Prilosec, Defendant Tolbert also prescribed Plaintiff a 14day regimen of Tylenol 3 to manage his pain. (Id.) However, at the conclusion of that 14-day
period, Defendant Tolbert and Defendant Smith discontinued Plaintiffs Tylenol 3 prescription.
(Id. at p. 17.) Plaintiff alleges he now suffers from exacerbated pain, incapacitation, depression,
loss of sensation and paralysis, and higher blood pressure. (Id.)

On February 14, 2017, Magistrate Judge R. Stan Baker recommended that the Court
dismiss Plaintiffs Complaint, due to Plaintiffs accumulation of three strikes under 28 U.S.C.

§ 1915(g). (Doc. 4, p. 8.) Additionally, the Magistrate Judge denied Plaintiffs Motion to
Proceed in Forma Pauperis after concluding that Plaintiff did not sufficiently allege he faced

imminent danger of serious physical harm. (Id.) Plaintiff filed Objections to the Magistrate

Judge's Report and Recommendation on March 2, 2017. (Doc. 5.) Plaintiff filed an identical
pleading labeled "Motion to Amend/Correct Complaint" on the same date, (doc. 6), as well as a

pleading labeled "Amended Complaint" on March 15, 2017, in which he reiterates his
Objections to the Report and Recommendation.
DISCUSSION

In his Objections, Plaintiff contends the Magistrate Judge failed to liberally construe his

Complaint, as required by Haines v. Kerner, 404 U.S. 519 (1972), and therefore, improperly

concluded that Plaintiff does not face an imminent danger of harm. Plaintiff presents these same
arguments in his Motion to Amend and his "Amended Complaint", (docs. 6, 7).
As the Magistrate Judge discussed in the Report and Recommendation, a prisoner

attempting to proceed in forma pauperis in a civil action in federal court must comply with the
mandates of the Prison Litigation Reform Act ("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 Court of Appeals has 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, 723 (11th Cir. 1998) (quoting Lyon v. Krol 127 F.3d 763, 764 (8th Cir. 1997)).2
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 id. at 731 (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").

2 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, 144F.3d at 721-27.

The Eleventh Circuit has held that a prisoner barred from proceeding in forma pauperis

due to the "three strikes" provision in § 1915(g) must pay the entire filing fee3 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 in forma pauperis 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 more than three civil

actions or appeals which count as strikes under Section 1915(g): 1) Baez v. Gearinger, No. 5:00cv-00023 (M.D. Ga. Mar. 21, 2000), ECF No. 4 (dismissing complaint as frivolous); 2) Baez v.

Doe, No. 5:99-cv-00353 (M.D. Ga. Nov. 4, 1999), ECF No. 5 (dismissing action as frivolous);
3) Baez v. Miller, et al, l:06-cv-01738 (N.D. Ga. Sept. 20, 2007), ECF No. 36 (dismissing
action as frivolous for failure to state a claim); 4) Baez v. Lee, l:90-cv-01942 (N.D. Ga. Nov. 20,

1990), ECF No. 3 (dismissing complaint as frivolous); 5) Baez v. Lee, l:94-cv-01347 (N.D. Ga.
Dec. 6, 1995), ECF No. 6 (same); 6) Baez v. Forrester, l:98-cv-02126 (N.D. Ga. Nov. 6, 1998),

ECF No. 8 (dismissal for failure to follow court order);4 and 7) Baez v. Jackson, et. al, 6:16-cv-5
(S.D. Ga. Apr. 18, 2016), ECF No. 8 (dismissal for failure to disclose litigation history and

3 The applicable filing fee is $400.00. "The entire fee to be paid in advance of filing a civil complaint is
$400. That fee includes a filing fee of $350 plus an administrative fee of $50, for a total of $400. A
prisonerwho is granted informapauperis statuswill, instead, be assessed a filing fee of $350 and will not
be responsible for the $50 administrative fee. A prisoner who is denied informapauperis status must pay
the full $400, including the $350 filing fee and the $50 administrative fee, before the complaint will be
filed." Callaway v. Cumberland Ctv. Sheriff Dep't, No. CIV. 14-4853 NLH, 2015 WL 2371614, at *1
(D.N.J. May 18, 2015); see also Owens v. Sec'v Fla. Dep't of Corr., Case No.: 3:15cv272/MCR/EMT,
2015 WL 5003649 (N.D. Fla. Aug. 21, 2015) (noting that the filing fee applied to cases in which a
prisoner-plaintiff is denied informa pauperis status is $400.00).
4 While this cause of action was dismissed based on Plaintiffs failure to follow the orders of a court, the
Eleventh Circuit has considered cases dismissed for this reason (or those representing an abuse of the

judicial process) to be "strike-worthy". See Rivera, 144 F.3d at 731; Malautea, 987 F.2dat 1544. Even if
the Court were to exclude this cause of action, Plaintiff has at least three strikes based on dismissals of
other causes of action.

failure to allege imminent danger of serious physical injury concerning manner in which plaintiff
is given pain medication).

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 Ctv. 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

(1 lth 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). 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 informa

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."). "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)).

In his Objections, Plaintiff maintains that he has high blood pressure due to the
withdrawal of his pain medication.

(Doc. 7, p. 4.)

Plaintiff maintains that "high blood

pressure .. . can be a 'silent killer, '"and that he should, therefore, be granted informa pauperis
status under the imminent danger of serious physical injury exception. However, even accepting

as true Plaintiffs allegation that he has developed high blood pressure as a result of the
withdrawal of his pain medication, Plaintiffs Complaint reveals that he refuses to take the
medication available to him and insists upon a different course of treatment. As noted above, "a

prisoner cannot create the imminent danger so as to escape the three strikes provision of the
PLRA.'" Ball, 2007 WL 484547, at *2. Moreover, Plaintiff has failed to explain how his high

blood pressure presents a risk of imminent danger that may result in serious physical harm. See
Brown v. Lvons, 977 F. Supp. 2d 475, 484 (E.D. Pa. 2013) (allegations of inadequate treatment

of high blood pressure do not amount to imminent danger). Thus, the Magistrate Judge was

correct to deny Plaintiffs Motion to Proceed in Forma Pauperis and to recommend dismissal of

his Complaint. According to the record before the Court, Plaintiff has obtained at least three
strikes under the PLRA and has not shown that he faces imminent danger of serious physical

injury as a result of Defendants' actions. To the contrary, it is Plaintiffs own refusal to take the
medication available to him that has caused any imminent danger to his health. Accordingly, the
Court OVERRULES Plaintiffs Objections.
CONCLUSION

For the reasons discussed above, the Court OVERRULES Plaintiffs Objections,

(docs. 5, 6, 7), and ADOPTS the Magistrate Judge's Report and Recommendation as the opinion
of the Court. The Court DISMISSES Plaintiffs Complaint, without prejudice, and DENIES

Plaintiff leave to appeal informa pauperis. The Court DIRECTS the Clerk of Court to enter an
appropriate judgment of dismissal and to CLOSE this case.

SO ORDERED, this _MJ1day ofAugust, 2017.

J. RA^DMJHALL, CHIEF JUDGE
uniteT51states DISTRICT COURT
iRN DISTRICT OF GEORGIA