Sanders v. Warren County et al

Filing 18

ORDER: For the stated reasons, the Court DENIES pro se Plaintiff David Sanders's [2, 6] Motions for Leave to Proceed in forma pauperis, and the Court DISMISSES this action WITHOUT PREJUDICE. The Court will issue a separate final judgment consistent with this Order. Signed by District Judge Kristi H. Johnson on 10/23/2024 (cwl)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
DAVID SANDERS
V.

PLAINTIFF
CIVIL ACTION NO. 3:24-CV-507-KHJ-MTP

WARREN COUNTY, et al.

DEFENDANTS
ORDER

Before the Court are pro se Plaintiff David Sanders’s [2, 6] Motions for Leave
to Proceed in forma pauperis. The Court denies the motions under 28 U.S.C.
§ 1915(g) and dismisses this action without prejudice.
I.

Standard
The Prison Litigation Reform Act (PLRA) provides:
In no event shall a prisoner bring a civil action . . . under this section if
the prisoner has, on 3 or more prior occasions, while incarcerated . . . ,
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). “A prisoner may still pursue any claim after three qualifying
dismissals, but he or she must do so without the aid of the i.f.p. procedures.”

Adepegba v. Hammons, 103 F.3d 383, 386 (5th Cir. 1996), abrogated in part on
other grounds by Coleman v. Tollefson, 575 U.S. 532, 537 (2015). Put differently,
“[p]risoners who are not allowed to proceed i.f.p. may pursue their substantive
claims just as anyone else by paying the filing fee.” Id. at 387.
II.

Analysis

The Court denies Sanders’s motions under Section 1915(g) and dismisses this
action without prejudice.
Sanders is incarcerated by the Mississippi Department of Corrections
(MDOC). He has, on at least five prior occasions, brought civil actions under Section
1915 in federal court while incarcerated by MDOC. Three were dismissed for failure
to state a claim. Order of Dismissal, Sanders v. Coleman, No. 3:22-CV-571 (S.D.
Miss. Apr. 27, 2023), ECF No. 24; Order of Dismissal, Sanders v. Itawamba County,
No. 1:18-CV-116 (N.D. Miss. Aug. 13, 2018), ECF No. 20; Order of Dismissal,

Sanders v. Itawamba County, No. 1:17-CV-217 (N.D. Miss. Apr. 12, 2018), ECF No.
24; see also Sanders v. Itawamba County, 772 F. App’x 254, 255 (5th Cir. 2019) (per
curiam) (discussing the two strikes from the Northern District of Mississippi).
These dismissals count as three strikes under Section 1915(g). Because Sanders has
at least three strikes, he may proceed in forma pauperis only if he satisfies the
imminent-danger exception. See 28 U.S.C. § 1915(g).
The imminent-danger exception allows a prisoner to proceed in forma

pauperis if he is in “imminent danger of serious physical injury.” Id. “[A] prisoner
with three strikes is entitled to proceed with his action . . . only if he is in imminent
danger at the time that he seeks to file his suit in [the] district court or . . . files a
motion to proceed IFP.” Baños v. O’Guin, 144 F.3d 883, 884 (5th Cir. 1998) (per
curiam). “Further, 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.” Malik v. McGinnis, 293 F.3d 559, 563 (2d
2

Cir. 2002) (cleaned up).
Sanders filed this case in August 2024 from the Carroll County Correctional
Facility, where he is now housed. See, e.g., Envelope [1-2]. He challenges his prior
conditions of confinement at the Warren County Jail, as well as his most recent
arrest. See Compl. [1]. He states that he was brought to the Warren County Jail as
a pretrial detainee in April 2024. Id. at 2. While there, Sanders alleges he was
repeatedly attacked by six other inmates, despite having notified jail officials that
he was being threatened and beaten. Id. at 2–3. Sanders claims he suffered broken
ribs, punctured lungs, and a broken nose. Id. at 3. When a guard saw him being
attacked, Sanders was taken to the hospital, where a doctor scheduled him for
surgery on his nose. Id. But Sanders alleges that he was released from the jail’s
custody, so he did not get the surgery. Id. He claims he needs his teeth fixed and
reconstructive surgery on his nose because he has problems breathing. Id. at 3, 9.
He sought both medical treatment and an attorney while he was released. Id. at 4.
Two months after Sanders’s release from Warren County custody, Sanders
was allegedly arrested in retaliation for contacting attorneys. Id. at 4–5. He
contends that he is innocent of the alleged offense. Id.
Sanders fails to allege imminent danger of serious physical injury. Only his
failure-to-protect and denial-of-medical-treatment claims implicate his physical
well-being. But those claims challenge past events; Sanders is no longer housed at
the Warren County Jail. He fails to allege that he was under an imminent danger of
serious physical injury either at the time he filed his Complaint or at the time he
3

moved for leave to proceed in forma pauperis. The Court therefore must deny his [2,
6] Motions for Leave to Proceed in forma pauperis.
Because the Court denies Sanders permission to proceed as a pauper and
because the Court has not received payment of the filing and administrative fees for
this civil action, the Court dismisses this action without prejudice.
III.

Conclusion
The Court has considered all arguments. Those not addressed would not have

changed the outcome. For the stated reasons, the Court DENIES pro se Plaintiff
David Sanders’s [2, 6] Motions for Leave to Proceed in forma pauperis, and the
Court DISMISSES this action WITHOUT PREJUDICE. The Court will issue a
separate final judgment consistent with this Order.
SO ORDERED AND ADJUDGED, this 23rd day of October, 2024.
s/ Kristi H. Johnson
UNITED STATES DISTRICT JUDGE

4