IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION

FRANKIE WAYNE POPE, : : Petitioner, : : V. : : NO. 4:22-cv-00174-CDL-MSH STATE OF GEORGIA, et al., : : Respondents. : _________________________________:

ORDER OF DISMISSAL

Petitioner Frankie Wayne Pope, a prisoner in Hays State Prison in Trion, Georgia, has filed an action on a civil rights complaint form for a complaint under

. Compl., ECF No. 1. In the complaint, Petitioner appears to be seeking a writ of mandamus compelling Respondents Lowndes County Superior Court Clerk Beth C. Greene and the State of Georgia to provide Petitioner with certain transcripts and other documentation from past court cases. See generally

Petitioner has also filed a motion to proceed in this action in forma pauperis. Mot. for Leave to Proceed In Forma Pauperis, ECF No. 2. Upon review of these documents, the Court finds that Petitioner may not proceed in forma pauperis because more than three of his prior federal lawsuits were dismissed on grounds that count as “strikes” under

(g), and Petitioner has not alleged that he is in imminent danger of serious physical injury. Accordingly, Petitioner’s motion to proceed in forma pauperis is now DENIED, and his complaint is DISMISSED WITHOUT PREJUDICE, as set forth below. Federal law bars a prisoner from bringing a “civil action” in federal court in forma pauperis if [he] 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.

(g). This is known as the “three strikes provision.” Under § 1915(g), a prisoner incurs a “strike” any time he has a federal lawsuit or appeal dismissed on the grounds that it is frivolous or malicious or fails to state a claim. See Medberry v. Butler,

(11th Cir. 1999). Once a prisoner incurs three strikes, his ability to proceed in forma pauperis in federal court is greatly limited: leave to proceed in forma pauperis may not be granted unless the prisoner is under imminent danger of serious physical injury.

A review of court records on the Federal Judiciary’s Public Access to Court Electronic Records (“PACER”) database reveals that Petitioner has filed various federal lawsuits and that at least three of his complaints or appeals have been dismissed as frivolous or malicious or for failure to state a claim. See, e.g., Pope v. Ella, Case No. 4:21-cv-00079 (N.D. Ga. Dec. 8, 2021) (dismissing for failure to state a claim), ECF No. 9; Pope v. Allen, Case No. 2:17-cv-00072 (S.D. Ga. Oct. 23, 2017) (dismissing for

abuse of the judicial process), ECF No. 12; Pope v. Crickmar, Case No. 4:15-cv-00142- CDL-MSH (M.D. Ga. Sept. 22, 2015) (dismissing for failure to state a claim), ECF No. 6. Petitioner is accordingly barred from prosecuting this action in forma pauperis 2 unless he is in imminent danger of serious physical injury.

(g). To qualify for this exception, a prisoner must allege specific facts that describe an “ongoing serious physical injury” or “a pattern of misconduct evidencing the

likelihood of imminent serious physical injury.” Sutton v. Dist. Attorney’s Office,

(11th Cir. 2009) (per curiam) (internal quotation marks omitted). Complaints of past injuries are not sufficient. See Medberry,

. Vague and unsupported claims of possible dangers likewise do not suffice. See White v. State of Colo.,

(10th Cir. 1998). The exception to § 1915(g)

is to be applied only in “genuine emergencies,” when (1) “time is pressing,” (2) the “threat or prison condition is real and proximate,” and (3) the “potential consequence is ‘serious physical injury.’” Lewis v. Sullivan,

(7th Cir. 2002). Petitioner’s complaint relates to documents from previous court cases that he is attempting to obtain and submit into evidence in a separate action. Nothing in his

allegations suggests that Petitioner is in imminent danger of serious physical injury. Accordingly, Petitioner’s motion to proceed in this action in forma pauperis is DENIED, and Petitioner’s complaint is DISMISSED WITHOUT PREJUDICE.1 Alternatively, even if Petitioner could proceed in forma pauperis, his action

1In Dupree v. Palmer,

(11th Cir. 2002), the Eleventh Circuit held that a prisoner cannot simply pay the filing fee after being denied in forma pauperis status, he must pay the filing fee at the time he initiates the suit. Thus, the proper procedure when denying in forma pauperis status is to dismiss the complaint without prejudice, allowing the Petitioner to refile upon payment of the full $402.00 filing fee.

3 would be dismissed for failure to state a claim. In this regard, to the extent that the complaint may be read as being brought under

, the State of Georgia is not a proper defendant to this action because the Eleventh Amendment bars suits

directly against a state or its agencies. See Stevens v. Gay,

(11th Cir. 1989) (citing Alabama v. Pugh,

(1978)). This bar applies “regardless of whether the plaintiff seeks money damages or prospective injunctive relief.”

(citing Pennhurst State Sch. & Hosp. v. Halderman,

(1984)).

Moreover, Plaintiff has not alleged any facts to show that the other named respondent, Court Clerk Beth Greene, has acted to violate his constitutional rights in any way. “[S]ection 1983 requires proof of an affirmative causal connection between the actions taken by a particular person under color of state law and the constitutional deprivation.” LaMarca v. Turner,

(11th Cir. 1993) (internal

quotation marks and citations omitted). Thus, Plaintiff’s complaint does not state a claim for relief. Finally, if the Court were to read this as a motion for a writ of mandamus directing Respondent Greene to submit documents in Petitioner’s other case or to provide those documents to Plaintiff, relief still would not be appropriate. This is so

because federal courts have no jurisdiction to issue writs compelling action by state officials in the performance of their duties. See Moye v. Clerk, DeKalb Cnty. Sup. Ct.,

(5th Cir. 1973). This Court thus has no mandamus jurisdiction 4 to compel either the State of Georgia or Respondent Greene to perform the actions Petitioner requests. See e.g., Garland v. Florida Dept. of Law Enforcement, No. 8:09– cv–1208,

, at * 2 (M.D. Fla. July 2, 2009) (district court does not

have jurisdiction to issue a writ of mandamus directing the Florida Department of Law Enforcement to investigate Plaintiff's claims or to release him from prison). Thus, for the reasons discussed above, Petitioner’s motion to proceed in forma pauperis is DENIED, and Petitioner’s complaint is DISMISSED WITHOUT PREJUDICE.

SO ORDERED, this 4th day of January, 2023.

S/Clay D. Land CLAY D. LAND U.S. DISTRICT COURT JUDGE MIDDLE DISTRICT OF GEORGIA

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