FOR THE SOUTHERN DISTRICT OF GEORGIA

DUBLIN DIVISION

ROY MANDELL SMITH, ) ) Plaintiff, ) ) v. ) ) CV 321-055 JERMAINE WHITE, Warden; ) JORDAN WICKER, Deputy Warden of ) Security; and VERONICA STEWART, ) Deputy Warden, ) ) Defendants. )

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

Plaintiff, an inmate at Telfair State Prison (“TSP”) in Helena, Georgia, seeks to proceed in forma pauperis (“IFP”) in this action filed pursuant to

. (Doc. no. 1.) For the reasons set forth below, the Court REPORTS and RECOMMENDS Plaintiff’s request to proceed IFP be DENIED, (doc. no. 2), and this action be DISMISSED without prejudice. I. BACKGROUND A prisoner attempting to proceed IFP in a civil action in federal court must comply with the mandates of the Prison Litigation Reform Act (“PLRA”),

801-810,

(1996).

(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. frequent filer prisoners to prepay the entire filing fee before federal courts may consider their

lawsuits and appeals.” Rivera v. Allin,

(11th Cir. 1998) (internal citations omitted), abrogated on other grounds by Jones v. Bock,

(2007); see also Lomax v. Ortiz-Marquez,

(U.S. 2020) (“The point of the PLRA, as its terms show, was to cabin not only abusive but also simply meritless prisoner suits.”). The Eleventh Circuit has upheld the constitutionality of § 1915(g) because it does not violate an inmate’s right to access the courts, the doctrine of separation of powers, an inmate’s right to due process of law, or an inmate’s right to equal protection. Id. at 721-27.

II. DISCUSSION A. Dismissal Is Warranted Because Plaintiff Has Three Strikes Under § 1915(g)

A review of Plaintiff’s history of filings reveals he has brought at least three cases that were dismissed as frivolous or for failure to state a claim and count as strikes: (1) Smith v. White, 3:20-CV-066 (S.D. Ga. Dec. 10, 2020) (dismissing complaint as malicious); (2) Smith v. Sellers, 7:18-CV-00023-WLS-TQL (M.D. Ga. June 13, 2018) (dismissing for failure to state a claim); (3) Smith v. Sellers, 5:17-CV-00497-CAR-CHW (M.D. Ga. Mar. 15, 2018); (dismissing for failure to state a claim). Because Plaintiff has at least three strikes, he cannot proceed IFP unless he can demonstrate he qualifies for the “imminent danger of serious physical injury” exception to § 1915(g). Mitchell v. Nobles,

(11th Cir. 2017).

2 In order to come within the imminent danger exception, a prisoner must be in imminent danger at the time he files suit in district court, not at the time of the alleged incident that serves as the basis for the complaint. Medberry v. Butler,

(11th Cir. 1999). Plaintiff alleges Defendants Wicker and Stewart falsely imprisoned him in October 2020, when Defendants placed Plaintiff’s dorm on lockdown while resolving an issue with other inmates. (Doc. no. 1, p. 7.) Plaintiff asserts Defendant White failed to perform his duties upon denying Plaintiff’s grievance. (Id. at 8.) Plaintiff’s allegations do not demonstrate he “faced ‘a present imminent danger.’”

Daker v. United States,

, 681 (11th Cir. 2019) (per curiam) (citing Brown v. Johnson,

(11th Cir. 2004)). Plaintiff makes no allegations of danger or harm resulting from the dorm’s lockdown status. Without specific allegations that an injury is imminent or threatened, Plaintiff does not satisfy the imminent danger exception. See Odum v. Bryan Cnty, Judicial Circuit, No. CV 4:07-181,

, at *1 (S.D. Ga. Mar. 20, 2008) (requiring specific allegations grounded in specific facts indicating injury is imminent). For these reasons, Plaintiff fails to demonstrate he should be excused from paying the

full filing fee under the “imminent danger” exception to § 1915(g)’s three strike rule. III. CONCLUSION In sum, Plaintiff has accumulated at least three strikes against him and cannot satisfy the dictates of the “imminent danger” exception of § 1915(g). Thus, he fails to demonstrate that he should be excused from paying the full filing fee. Therefore, the Court REPORTS and RECOMMENDS Plaintiff’s request to proceed IFP be DENIED, (doc. no. 2), and this

action be DISMISSED without prejudice. If Plaintiff wishes to proceed with the claims raised 3 in this case, he should be required to initiate a new lawsuit, which would require submission of anew complaint. Dupree v. Palmer,

(11th Cir. 2002). SO REPORTED and RECOMMENDED this 29th day of September, 2021, at Augusta, Georgia.

UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OF GEORGIA