IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
DUBLIN DIVISION
RAKEIM JAQUIN HILLSMAN, ) ) Plaintiff, ) ) v. ) CV 320-029 ) WHEELER CORRECTIONAL FACILITY; ) CORE CIVIC; VANCE LAUGHIN; ) PITTMAN HERMAN; GABNALLE GRIE; ) and JENNY WILLIAM, ) ) Defendants. )
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, an inmate at Wheeler Correctional Facility in Alamo, Georgia, seeks to proceed in forma pauperis (“IFP”) in this action filed pursuant to 42 U.S.C. § 1983. 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”), Pub. L. No. 104-134, §§ 801-810, 110 Stat. 1321 (1996). 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.
“This 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) (internal citations omitted), abrogated on other grounds by Jones v. Bock, 549 U.S. 199 (2007). 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) Hillsman v. Edwards, No. 3:19-cv-56-CAR-CHW (M.D. Ga. Feb. 13, 2020) (dismissing for failure to state a claim); (2) Hillsman v. Martin, No. 3:19-cv-38-CAR-CHW (M.D. Ga. Feb. 13, 2020) (dismissing for failure to state a claim); and (3) Hillsman v. Quick, No. 3:19-cv- 31-CAR-CHW (M.D. Ga. Jan. 30, 2020) (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, 873 F.3d 869, 873 (11th Cir. 2017). 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 2 incident that serves as the basis for the complaint. Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999). Plaintiff alleges Defendant Grie assaulted Plaintiff by pushing him into unit 600 on January 26, 2020. (Doc. no. 1, pp. 3, 6.) Plaintiff further alleges the remaining
Defendants signed or delivered the disciplinary report involving the assault. (Id.) None of the allegations in the complaint plausibly establish Plaintiff remained in imminent danger when he signed his complaint on March 19, 2020, almost two months later. (Id. at 5.) Accordingly, 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. B. The Complaint Should Also Be Dismissed Because Plaintiff Failed to Disclose His Prior Cases and His Acquiring Three Strikes under the PLRA
The form complaint Plaintiff used to commence this case, the “Prisoner Civil Rights Complaint,” requires that prisoner plaintiffs disclose whether they have filed other lawsuits in federal court while incarcerated in any institution and the disposition of any such lawsuits. (Doc. no. 1, pp. 1-2.) Under this question, the prisoner plaintiff who has brought any such lawsuits is specifically instructed to describe each lawsuit, including the court hearing the case, the date of filing, and disposition. (Id.) If there is more than one such lawsuit, the additional lawsuits must be described on another piece of paper. (Id.) Plaintiff failed to disclose any cases. (Id. at 1-2.) However, in addition to the cases stated in § II.A., supra, the Court is aware of at least two other cases Plaintiff filed which he failed to disclose: (1) Hillsman v. Unnamed Defendants, No. 1:20-cv-01086-WMR (N.D. Ga. Mar. 9, 2020); (2) Hillsman v. JAN, No. 3:19-cv-00046-CAR-CHW (M.D. Ga. May 2, 2019). As noted above, Plaintiff filed at least three prior IFP cases that were dismissed for 3 failure to state a claim, which amounts to three strikes under § 1915(g). Plaintiff’s answers about filing other federal lawsuits in this case is also blatantly dishonest, and therefore, even if Plaintiff were permitted to proceed IFP, the case should be dismissed without prejudice as
a sanction for the dishonesty. The Eleventh Circuit has approved of dismissing a case based on dishonesty in a complaint. In Rivera, the Court of Appeals reviewed a prisoner plaintiff’s filing history for the purpose of determining whether prior cases counted as “strikes” under the PLRA and stated: The district court’s dismissal without prejudice in Parker is equally, if not more, strike-worthy. In that case, the court found that Rivera had lied under penalty of perjury about the existence of a prior lawsuit, Arocho. As a sanction, the court dismissed the action without prejudice, finding that Rivera “abuse[d] the judicial process[.]”
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
DUBLIN DIVISION
RAKEIM JAQUIN HILLSMAN, ) ) Plaintiff, ) ) v. ) CV 320-029 ) WHEELER CORRECTIONAL FACILITY; ) CORE CIVIC; VANCE LAUGHIN; ) PITTMAN HERMAN; GABNALLE GRIE; ) and JENNY WILLIAM, ) ) Defendants. )
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, an inmate at Wheeler Correctional Facility in Alamo, Georgia, seeks to proceed in forma pauperis (“IFP”) in this action filed pursuant to 42 U.S.C. § 1983. 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”), Pub. L. No. 104-134, §§ 801-810, 110 Stat. 1321 (1996). 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.
“This 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) (internal citations omitted), abrogated on other grounds by Jones v. Bock, 549 U.S. 199 (2007). 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) Hillsman v. Edwards, No. 3:19-cv-56-CAR-CHW (M.D. Ga. Feb. 13, 2020) (dismissing for failure to state a claim); (2) Hillsman v. Martin, No. 3:19-cv-38-CAR-CHW (M.D. Ga. Feb. 13, 2020) (dismissing for failure to state a claim); and (3) Hillsman v. Quick, No. 3:19-cv- 31-CAR-CHW (M.D. Ga. Jan. 30, 2020) (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, 873 F.3d 869, 873 (11th Cir. 2017). 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 2 incident that serves as the basis for the complaint. Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999). Plaintiff alleges Defendant Grie assaulted Plaintiff by pushing him into unit 600 on January 26, 2020. (Doc. no. 1, pp. 3, 6.) Plaintiff further alleges the remaining
Defendants signed or delivered the disciplinary report involving the assault. (Id.) None of the allegations in the complaint plausibly establish Plaintiff remained in imminent danger when he signed his complaint on March 19, 2020, almost two months later. (Id. at 5.) Accordingly, 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. B. The Complaint Should Also Be Dismissed Because Plaintiff Failed to Disclose His Prior Cases and His Acquiring Three Strikes under the PLRA
The form complaint Plaintiff used to commence this case, the “Prisoner Civil Rights Complaint,” requires that prisoner plaintiffs disclose whether they have filed other lawsuits in federal court while incarcerated in any institution and the disposition of any such lawsuits. (Doc. no. 1, pp. 1-2.) Under this question, the prisoner plaintiff who has brought any such lawsuits is specifically instructed to describe each lawsuit, including the court hearing the case, the date of filing, and disposition. (Id.) If there is more than one such lawsuit, the additional lawsuits must be described on another piece of paper. (Id.) Plaintiff failed to disclose any cases. (Id. at 1-2.) However, in addition to the cases stated in § II.A., supra, the Court is aware of at least two other cases Plaintiff filed which he failed to disclose: (1) Hillsman v. Unnamed Defendants, No. 1:20-cv-01086-WMR (N.D. Ga. Mar. 9, 2020); (2) Hillsman v. JAN, No. 3:19-cv-00046-CAR-CHW (M.D. Ga. May 2, 2019). As noted above, Plaintiff filed at least three prior IFP cases that were dismissed for 3 failure to state a claim, which amounts to three strikes under § 1915(g). Plaintiff’s answers about filing other federal lawsuits in this case is also blatantly dishonest, and therefore, even if Plaintiff were permitted to proceed IFP, the case should be dismissed without prejudice as
a sanction for the dishonesty. The Eleventh Circuit has approved of dismissing a case based on dishonesty in a complaint. In Rivera, the Court of Appeals reviewed a prisoner plaintiff’s filing history for the purpose of determining whether prior cases counted as “strikes” under the PLRA and stated: The district court’s dismissal without prejudice in Parker is equally, if not more, strike-worthy. In that case, the court found that Rivera had lied under penalty of perjury about the existence of a prior lawsuit, Arocho. As a sanction, the court dismissed the action without prejudice, finding that Rivera “abuse[d] the judicial process[.]”
Rivera, 144 F.3d at 731; see also Sears v. Haas, 509 F. App’x 935, 936 (11th Cir. 2013) (per curiam) (affirming dismissal of complaint where prisoner plaintiff failed to accurately disclose previous litigation); Redmon v. Lake Cty. Sheriff’s Office, 414 F. App’x 221, 223, 226 (11th Cir. 2011) (per curiam) (affirming dismissal, after directing service of process, of amended complaint raising claims that included denial of proper medical care and cruel and unusual punishment for placement in a “restraint chair” and thirty-seven days of solitary confinement upon discovering prisoner plaintiff failed to disclose one prior federal lawsuit); Young v. Sec’y Fla. for Dep’t of Corr., 380 F. App’x 939, 940-41 (11th Cir. 2010) (per curiam) (affirming dismissal of third amended complaint based on a plaintiff’s failure to disclose prior cases on the court’s complaint form); Alexander v. Salvador, No. 5:12cv15, 2012 WL 1538368 (N.D. Fla. Mar. 21, 2012) (dismissing case alleging deliberate 4 indifference to serious medical needs where plaintiff failed to disclose new case commenced in interim between filing original complaint and second amended complaint), adopted by Alexander v. Salvador, No. 5:12cv15, 2012 WL 1538336 (N.D. Fla. May 2, 2012). The practice of dismissing a case as a sanction for providing false information about prior filing history is also well established in the Southern District of Georgia. See, e.g., Brown v. Wright, CV 111-044 (S.D. Ga. June 17, 2011); Hood v. Tompkins, CV 605-094 (S.D. Ga. Oct. 31, 2005), aff'd, 197 F. App’x 818 (11th Cir. 2006). Il. CONCLUSION For the reasons set forth above, 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 in this lawsuit, he should be required to initiate a new lawsuit, which would require submission of a new complaint. Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002). SO REPORTED and RECOMMENDED this 20th day of April, 2020, at Augusta, Georgia.
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UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OF GEORGIA