UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION CALVIN JAMES, ) Plaintiff, 5 CV420-093 U.S MARSHALS, Defendant. ORDER Plaintiff, a prisoner at the federal correctional complex, has submitted what appears to be a 42 U.S.C. § 1983 Complaint for various fourth amendment claims. See doc. 1. He seeks to proceed in forma pauperis (IFP). Doc. 2. After reviewing plaintiff's application, it appears that he lacks sufficient
resources to prepay the filing fee. Accordingly, the Court GRANTS plaintiff leave to proceed in forma pauperis. Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (PLRA), all prisoners, even those who are allowed to proceed IFP, must
pay the full filing fee of $350.00. 28 U.S.C. § 1915(b)(1). Prisoner IFP litigants must pay an initial partial filing fee of 20 percent of the greater of the
average monthly deposits to, or average monthly balance in, the prisoner’s account for the 6-month period immediately preceding the filing of the
Complaint. Prison officials are then required to collect the balance of the filing fee by deducting 20 percent of the preceding month’s income credited to the prisoner’s account. 28U.S.C.§ 1915(b)(2). This payment shall be forwarded
to the Clerk of Court “each time the amount in plaintiff's account exceeds $10 until the full filing fees are paid.” Id. The entire filing fee must be paid even if the suit is dismissed at the outset because it is frivolous, malicious, fails to
state a claim, or seeks monetary damages against a defendant who is immune from such relief. In addition to requiring payment of the full filing fee, the PLRA now requires prisoners to exhaust all administrative remedies before challenging “prison conditions” in a civil action. 42 U.S.C. § 1997e; see 18 U.S.C. § 3626(g)(2). All prisoner civil rights actions filed after April 26, 1996 are subject to dismissal if the prisoner has not exhausted the available administrative remedies with respect to each claim asserted. Moreover, even if the Complaint is dismissed for failure to exhaust, the prisoner will still be responsible for payment of the full filing fee. The PLRA also provides that a prisoner cannot bring a new civil action or appeal a judgment in a civil action in forma pauperis if the prisoner has on three
or more prior occasions, while incarcerated, brought a civil action or appeal in federal court that was dismissed because it was frivolous, malicious, or failed
to state a claim upon which relief may be granted. The only exception to this “three strikes” rule is if the prisoner is in “imminent danger of serious physical injury.” 28U.S.C.§ 1915(g).! Because of these legal parameters, the Court will give plaintiff an opportunity, at this time, to voluntarily dismiss the Complaint pursuant to Fed. R. Civ. P. 41(a)(1). Such a voluntary dismissal will not require plaintiff to pay the filing fee or count as a dismissal which may later subject plaintiff to the three-dismissal rule under section 1915(g). IT IS HEREBY ORDERED that: (1) Plaintiff must furnish the enclosed Prisoner Trust Fund Account Statement to the trust (financial) officer of each prison where he has been confined for the past six months. The trust officer will complete and sign the
1 Plaintiffs are generally required to pay a filing fee in order to institute a civil action in a federal district court. 28U.S.C.§1914. Indigent prisoners may avoid prepayment of the filing fee under 28 U.S.C. § 1915, but must surmount § 1915(g): 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. 28 U.S.C. § 1915(g). A three-striker who fails to show “imminent danger” must pay the complete $350 filing fee when he initiates suit. Vanderberg v. Donaldson, 259 F.3d 1321, 1324 (11th Cir. 2001). Short of that, the court dismisses the Complaint without prejudice. Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002).
form and return the form and supporting documents to plaintiff for submission
to the Court. Two copies of the form are enclosed for this purpose. (2) Plaintiff must sign and date the enclosed Consent to Collection of Fees from Trust Account. By signing this form, plaintiff gives his consent to the collection of the entire filing fee from his prison account in installments, in accordance with the provisions of the Prison Litigation Reform Act. (3) Plaintiff must return both the Prisoner Trust Account Statement and the Consent to Collection of Fees from Trust Account to the Clerk within fourteen days of the date this Order is served. The Clerk of Court is DIRECTED to serve along with a copy of this Order (1) a Prisoner Trust Account Statement form, and (2) the Consent to Collection of Fees from Trust Account form. Plaintiff shall have fourteen days from the service of this Order to fill out andreturn bothforms. Once plaintiffhas complied with the conditions of this Order, the Court will review plaintiff's Complaint to determine which, if any, claims are viable and which, if any, defendants should be served with a copy of the Complaint. If no response is timely received from plaintiff, the Court will
presume that plaintiff desires to have this case voluntarily dismissed.
Failure to comply with this Order within fourteen (14) days of the date this Order is served shall result in the recommendation of dismissal of plaintiff's case, without prejudice. Plaintiff also seeks the removal of the undersigned pursuant to the “one free bite” rule. Doc.3. The “one free bite” rule is an archaic rule of tort law that is irrelevant to the continued participation of a judge. It essentially grants a mulligan to the owner of a domesticated animal that bites another
person, if the owner was not on notice of the animal’s proclivity to bite because ithad not previously doneso. One-bite Rule, Black’s Law Dictionary (10th ed. 2014) (“A common-law rule or statutory provision holding a dog-owner responsible for any harm or injury caused by the dog only if the owner knows
or has reason to know that the dog is dangerous. ... Also termed first-bite rule; one-free-bite rule.”). Neither the “one bite rule” nor any other common-law or
statutory construction known to the Court allows a party a free pass to change their judge without good cause. Beyond his assertion of an outdated, inapplicable doctrine, plaintiff has pointed to no grounds warranting recusing in this case. Two federal statutes govern judicial disqualification. The first, 28 U.S.C. § 144, only applies when “a party ...
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION CALVIN JAMES, ) Plaintiff, 5 CV420-093 U.S MARSHALS, Defendant. ORDER Plaintiff, a prisoner at the federal correctional complex, has submitted what appears to be a 42 U.S.C. § 1983 Complaint for various fourth amendment claims. See doc. 1. He seeks to proceed in forma pauperis (IFP). Doc. 2. After reviewing plaintiff's application, it appears that he lacks sufficient
resources to prepay the filing fee. Accordingly, the Court GRANTS plaintiff leave to proceed in forma pauperis. Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (PLRA), all prisoners, even those who are allowed to proceed IFP, must
pay the full filing fee of $350.00. 28 U.S.C. § 1915(b)(1). Prisoner IFP litigants must pay an initial partial filing fee of 20 percent of the greater of the
average monthly deposits to, or average monthly balance in, the prisoner’s account for the 6-month period immediately preceding the filing of the
Complaint. Prison officials are then required to collect the balance of the filing fee by deducting 20 percent of the preceding month’s income credited to the prisoner’s account. 28U.S.C.§ 1915(b)(2). This payment shall be forwarded
to the Clerk of Court “each time the amount in plaintiff's account exceeds $10 until the full filing fees are paid.” Id. The entire filing fee must be paid even if the suit is dismissed at the outset because it is frivolous, malicious, fails to
state a claim, or seeks monetary damages against a defendant who is immune from such relief. In addition to requiring payment of the full filing fee, the PLRA now requires prisoners to exhaust all administrative remedies before challenging “prison conditions” in a civil action. 42 U.S.C. § 1997e; see 18 U.S.C. § 3626(g)(2). All prisoner civil rights actions filed after April 26, 1996 are subject to dismissal if the prisoner has not exhausted the available administrative remedies with respect to each claim asserted. Moreover, even if the Complaint is dismissed for failure to exhaust, the prisoner will still be responsible for payment of the full filing fee. The PLRA also provides that a prisoner cannot bring a new civil action or appeal a judgment in a civil action in forma pauperis if the prisoner has on three
or more prior occasions, while incarcerated, brought a civil action or appeal in federal court that was dismissed because it was frivolous, malicious, or failed
to state a claim upon which relief may be granted. The only exception to this “three strikes” rule is if the prisoner is in “imminent danger of serious physical injury.” 28U.S.C.§ 1915(g).! Because of these legal parameters, the Court will give plaintiff an opportunity, at this time, to voluntarily dismiss the Complaint pursuant to Fed. R. Civ. P. 41(a)(1). Such a voluntary dismissal will not require plaintiff to pay the filing fee or count as a dismissal which may later subject plaintiff to the three-dismissal rule under section 1915(g). IT IS HEREBY ORDERED that: (1) Plaintiff must furnish the enclosed Prisoner Trust Fund Account Statement to the trust (financial) officer of each prison where he has been confined for the past six months. The trust officer will complete and sign the
1 Plaintiffs are generally required to pay a filing fee in order to institute a civil action in a federal district court. 28U.S.C.§1914. Indigent prisoners may avoid prepayment of the filing fee under 28 U.S.C. § 1915, but must surmount § 1915(g): 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. 28 U.S.C. § 1915(g). A three-striker who fails to show “imminent danger” must pay the complete $350 filing fee when he initiates suit. Vanderberg v. Donaldson, 259 F.3d 1321, 1324 (11th Cir. 2001). Short of that, the court dismisses the Complaint without prejudice. Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002).
form and return the form and supporting documents to plaintiff for submission
to the Court. Two copies of the form are enclosed for this purpose. (2) Plaintiff must sign and date the enclosed Consent to Collection of Fees from Trust Account. By signing this form, plaintiff gives his consent to the collection of the entire filing fee from his prison account in installments, in accordance with the provisions of the Prison Litigation Reform Act. (3) Plaintiff must return both the Prisoner Trust Account Statement and the Consent to Collection of Fees from Trust Account to the Clerk within fourteen days of the date this Order is served. The Clerk of Court is DIRECTED to serve along with a copy of this Order (1) a Prisoner Trust Account Statement form, and (2) the Consent to Collection of Fees from Trust Account form. Plaintiff shall have fourteen days from the service of this Order to fill out andreturn bothforms. Once plaintiffhas complied with the conditions of this Order, the Court will review plaintiff's Complaint to determine which, if any, claims are viable and which, if any, defendants should be served with a copy of the Complaint. If no response is timely received from plaintiff, the Court will
presume that plaintiff desires to have this case voluntarily dismissed.
Failure to comply with this Order within fourteen (14) days of the date this Order is served shall result in the recommendation of dismissal of plaintiff's case, without prejudice. Plaintiff also seeks the removal of the undersigned pursuant to the “one free bite” rule. Doc.3. The “one free bite” rule is an archaic rule of tort law that is irrelevant to the continued participation of a judge. It essentially grants a mulligan to the owner of a domesticated animal that bites another
person, if the owner was not on notice of the animal’s proclivity to bite because ithad not previously doneso. One-bite Rule, Black’s Law Dictionary (10th ed. 2014) (“A common-law rule or statutory provision holding a dog-owner responsible for any harm or injury caused by the dog only if the owner knows
or has reason to know that the dog is dangerous. ... Also termed first-bite rule; one-free-bite rule.”). Neither the “one bite rule” nor any other common-law or
statutory construction known to the Court allows a party a free pass to change their judge without good cause. Beyond his assertion of an outdated, inapplicable doctrine, plaintiff has pointed to no grounds warranting recusing in this case. Two federal statutes govern judicial disqualification. The first, 28 U.S.C. § 144, only applies when “a party ... makes and files a timely and sufficient affidavit ....” Since no such affidavit has been filed, it does not apply
here. The second, 28 U.S.C. § 455, “places a judge under a self-enforcing obligation to recuse himself where the proper legal grounds exist.” United States v. Alabama, 828 F.2d 1532, 1540 (11th Cir. 1987), superseded by statute
on other grounds as recognized by J].W. by and through Tammy Williams v. Birmingham Bd. of Ed., 904 F.3d 1248, 1254 (11th Cir. 2018). As none of the grounds for mandatory disqualification enumerated under § 455(b) are applicable in this case, the only remaining justification for disqualification is if
my “impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). This requires consideration of whether “an objective, disinterested, lay observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt about the judge's impartiality.” United States v. Patti, 337 F.3d 1317, 1321 (11th Cir. 2003) (quoting Parker v. Connors Steel, Co., 855 F.2d 1510, 1524 (11th Cir. 1988), cert. denied, 540 U.S. 1149 (2004)). As Plaintiff has articulated no grounds for questioning the impartiality of the Court, recusal is not warranted and the motion is, therefore, DENIED.
SO ORDERED, this 18th day of September, 2020. Langbae~ 4 Lacs CHRISTOPHER L. RAY UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OF GEORGIA