IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA . VALDOSTA DIVISION: JENNIFER JOHNSON, ef al.,! □□
Petitioners, :
V. : NO. 7:25-ev-00162-WLS-ALS = □
DISTRICT ATTORNEY JOSEPH MULHOLLAND, ef ai., : a Defendants.
poe ORDER OF DISMISSAL
Georgia, has filed a pro se petition fora writ of mandamus. ECF No. I. Petitioner has also fileda motion for leave to proceed in forma pauperis (“IFP”) and two motions to appoint counsel: ECF Nos. 2, 3, 5. For the reasons set forth below, Petitioner’s motion to proceed IFP (ECF No, 2)-is DENIED, and this case is DISMISSED WITHOUT PREJUDICE because Petitioner has accrued more than three strikes pursuant to 28 U.S.C. §.1915(g), and she has not set forth allegations showing that she is in imminent danger of serious physical injury. Alternatively, the petition is dismissed for failure to state a claim □□□□
' Petitioner purports.to file this petition on behalf of herself arid Christopher B. Mormon. Petitioner is not an attorney and cannot represent Mormon in this matter. See Massimo □□□ Henderson, 468 F,2d 1209, 1210 (Sth Cir, 1972) (per curiam) (affirming dismissal of the portion of a prisoner’s complaint that sought relief on behalf of the prisoner's fellow inmates). Mormon -has- not: signed the -petition or otherwise expressed-an intention to proceed with claims in this Court. Therefore, the claims are address only as to Petitioner.
which relief may be granted. Petitioner’s motions to appoint counsel (ECF Nos. 3 & 5) are DENIED AS MOOT. . MOTION FOR LEAVE TO PROCEED IFP Federal law bars a prisoner from bringing a “civil action”? in federal court in forma pauperis
‘if [she] 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);. This is known as the “three strikes provision.” Under § 1915(g), □ 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. Buller, 185 F.3d 1189, 1192 (11th Cir, 1999). Once a prisoner incurs three strikes, his ability □□ 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. Jd. .
3 Petitions for mandanius. qualify: as “civil actions” for purposes of 28 ULS.C. § 1915(g). oe □ e.g., Greeny. Nottingham, 90.F.3d 415, 418-1 0th Cir. 1996) (Allowing prisoners □□ □ continue filing actions as they had-before the enactment of the [PLRA], merely by framing pleadings as petitions for mandamus would allow a loophole Congress. surely did not intend. in its stated goal of “discouragling] frivolous and-abusive prison lawsuits.’” (second alteration in original)); Jn re Nagy, 89 F.3d 115, 117 (2d Cir. 1996) (“[I]f a prisoner, contemplating. the filing of a complaint . . . under 42 U.S.C. § 1983, decided to. avoid liability for. filing fees and instead sought comparable relief by applying for a writ of mandamus directed to a prison official, the PLRA provisions should normally apply.”).
A review of court records on the Federal Judiciary’s Public Access to Court Electronic Records (“PACER”) database reveals that Petitioner has filed multiple federal lawsuits and that at Jeast three of her actions have been dismissed as frivolous, See, □□□□□ Order Dismissing Compl., Johnson v. Bainbridge Memorial Hosp. & Manor, Case No. 1:09-cv-00099-WLS-RLH (M.D. Ga. June 26, 2009), ECF No. 4 (dismissing case as frivolous); Order Dismissing Compl., Johnson v. Cofer, Case No, 6:06-cv-00035-WLS (M.D, Ga. June 22, 2006), ECF No. 7 (dismissing case as frivolous); Order Dismissing Compl, Johnson v. Patel, Case No. 6:05-cy-00049-HL (M.D. Ga. Dec. 12, 2005), ECE
No, 3 (dismissing case as frivolous). Becauise of this, Petitiones has previously been found to-have™actridd three strikes under § 1915(g). Order Dismissing Compl, Johnson □□ □□ Reynolds, Case No. 1:18-¢v-0001 3-WLS-TOL (M.D. Ga. uly 10, 2018), ECE No. 13
(dismissing case under the three strikes rule), oe co .
Petitioner is thus barred from prosecuting this action in forma pauperis unless she
is in “imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). “[T]he issue is whether [Plaintiff's] complaint, as a whole, alleges imminent danger of serious physical injury,” Brown v. Johnson, 387 F.3d 1344, 1350 ( ith Cir. 2004), To qualify for this
describe an “ongoing serious physical injury or . 4 pa tern of mn isconduct evidencing the likelihood of imminent serious physical injury” Id. (citation omitted), oe Here; Petitioner's allegations relate only to the validity of her conviction and sentence. Nothing in the petition suggests that Petitioner is in imminent danger of serious physical injury. Petitioner, therefore, may not proceed in forma pauperis and this action
must be dismissed without prejudice to her right to refile with pre-payment of the full $405.00 filing fee. See Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (per curiam) (holding that “the proper procedure is for the district court to dismiss the complaint without prejudice when it denies the prisoner leave to proceed in forma pauperis pursuant {o the three strikes provision of § 1915(gy”). Petitioner’s motion to proceed in forma pauperis (ECF No. 3) is DENIED and this action is DISMISSED WITHOUT PREJUDICE. Petitioner's motions to appoint counsel (CF Nos, 2 & 5) are DENIED AS MOOT. Alternatively, even if dismissal were □ not appropriate, under the three-strikes nile, the petition would nevertheléss be subject to □□ dismissal for Faihute to state a claim, as discussed below. oe ee oe ns □□
As noted above, even if Petitioner was permitted to proceed in forma pauperis, her petition would still be subject to dismissal, Because Petitioner is a prisoner “seeking redress from a governmental entity or [an] officer or employee of a governmental entity,” the Court is required to conduct a preliminary screening of the petition. See 28 U.S.C, g 1915A(a). When conducting a preliminary screening under IUS.C.§ 1915A, the Court □ must accept all factual allegations inthe complaint as true, Boxer Xv. Harris, 437 F.3d 1107, 1110 (11th Cir, 2006). Pro se pleadings, like the one in this casey are “held toa □□□□ stringent standard than leadings drafted by attorneys and will, therefore, be liberally construed. Jd, (internal quotation marks omitted), Still, the Court must dismiss a prisoner complaint if it “(1) is frivolous, malicious, or fails state a claim upon which relief may
be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). A claim is frivolous if it “lacks an arguable basis either in Jaw or in fact.” Miler v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008) (internal quotation marks omitted).
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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA . VALDOSTA DIVISION: JENNIFER JOHNSON, ef al.,! □□
Petitioners, :
V. : NO. 7:25-ev-00162-WLS-ALS = □
DISTRICT ATTORNEY JOSEPH MULHOLLAND, ef ai., : a Defendants.
poe ORDER OF DISMISSAL
Georgia, has filed a pro se petition fora writ of mandamus. ECF No. I. Petitioner has also fileda motion for leave to proceed in forma pauperis (“IFP”) and two motions to appoint counsel: ECF Nos. 2, 3, 5. For the reasons set forth below, Petitioner’s motion to proceed IFP (ECF No, 2)-is DENIED, and this case is DISMISSED WITHOUT PREJUDICE because Petitioner has accrued more than three strikes pursuant to 28 U.S.C. §.1915(g), and she has not set forth allegations showing that she is in imminent danger of serious physical injury. Alternatively, the petition is dismissed for failure to state a claim □□□□
' Petitioner purports.to file this petition on behalf of herself arid Christopher B. Mormon. Petitioner is not an attorney and cannot represent Mormon in this matter. See Massimo □□□ Henderson, 468 F,2d 1209, 1210 (Sth Cir, 1972) (per curiam) (affirming dismissal of the portion of a prisoner’s complaint that sought relief on behalf of the prisoner's fellow inmates). Mormon -has- not: signed the -petition or otherwise expressed-an intention to proceed with claims in this Court. Therefore, the claims are address only as to Petitioner.
which relief may be granted. Petitioner’s motions to appoint counsel (ECF Nos. 3 & 5) are DENIED AS MOOT. . MOTION FOR LEAVE TO PROCEED IFP Federal law bars a prisoner from bringing a “civil action”? in federal court in forma pauperis
‘if [she] 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);. This is known as the “three strikes provision.” Under § 1915(g), □ 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. Buller, 185 F.3d 1189, 1192 (11th Cir, 1999). Once a prisoner incurs three strikes, his ability □□ 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. Jd. .
3 Petitions for mandanius. qualify: as “civil actions” for purposes of 28 ULS.C. § 1915(g). oe □ e.g., Greeny. Nottingham, 90.F.3d 415, 418-1 0th Cir. 1996) (Allowing prisoners □□ □ continue filing actions as they had-before the enactment of the [PLRA], merely by framing pleadings as petitions for mandamus would allow a loophole Congress. surely did not intend. in its stated goal of “discouragling] frivolous and-abusive prison lawsuits.’” (second alteration in original)); Jn re Nagy, 89 F.3d 115, 117 (2d Cir. 1996) (“[I]f a prisoner, contemplating. the filing of a complaint . . . under 42 U.S.C. § 1983, decided to. avoid liability for. filing fees and instead sought comparable relief by applying for a writ of mandamus directed to a prison official, the PLRA provisions should normally apply.”).
A review of court records on the Federal Judiciary’s Public Access to Court Electronic Records (“PACER”) database reveals that Petitioner has filed multiple federal lawsuits and that at Jeast three of her actions have been dismissed as frivolous, See, □□□□□ Order Dismissing Compl., Johnson v. Bainbridge Memorial Hosp. & Manor, Case No. 1:09-cv-00099-WLS-RLH (M.D. Ga. June 26, 2009), ECF No. 4 (dismissing case as frivolous); Order Dismissing Compl., Johnson v. Cofer, Case No, 6:06-cv-00035-WLS (M.D, Ga. June 22, 2006), ECF No. 7 (dismissing case as frivolous); Order Dismissing Compl, Johnson v. Patel, Case No. 6:05-cy-00049-HL (M.D. Ga. Dec. 12, 2005), ECE
No, 3 (dismissing case as frivolous). Becauise of this, Petitiones has previously been found to-have™actridd three strikes under § 1915(g). Order Dismissing Compl, Johnson □□ □□ Reynolds, Case No. 1:18-¢v-0001 3-WLS-TOL (M.D. Ga. uly 10, 2018), ECE No. 13
(dismissing case under the three strikes rule), oe co .
Petitioner is thus barred from prosecuting this action in forma pauperis unless she
is in “imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). “[T]he issue is whether [Plaintiff's] complaint, as a whole, alleges imminent danger of serious physical injury,” Brown v. Johnson, 387 F.3d 1344, 1350 ( ith Cir. 2004), To qualify for this
describe an “ongoing serious physical injury or . 4 pa tern of mn isconduct evidencing the likelihood of imminent serious physical injury” Id. (citation omitted), oe Here; Petitioner's allegations relate only to the validity of her conviction and sentence. Nothing in the petition suggests that Petitioner is in imminent danger of serious physical injury. Petitioner, therefore, may not proceed in forma pauperis and this action
must be dismissed without prejudice to her right to refile with pre-payment of the full $405.00 filing fee. See Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (per curiam) (holding that “the proper procedure is for the district court to dismiss the complaint without prejudice when it denies the prisoner leave to proceed in forma pauperis pursuant {o the three strikes provision of § 1915(gy”). Petitioner’s motion to proceed in forma pauperis (ECF No. 3) is DENIED and this action is DISMISSED WITHOUT PREJUDICE. Petitioner's motions to appoint counsel (CF Nos, 2 & 5) are DENIED AS MOOT. Alternatively, even if dismissal were □ not appropriate, under the three-strikes nile, the petition would nevertheléss be subject to □□ dismissal for Faihute to state a claim, as discussed below. oe ee oe ns □□
As noted above, even if Petitioner was permitted to proceed in forma pauperis, her petition would still be subject to dismissal, Because Petitioner is a prisoner “seeking redress from a governmental entity or [an] officer or employee of a governmental entity,” the Court is required to conduct a preliminary screening of the petition. See 28 U.S.C, g 1915A(a). When conducting a preliminary screening under IUS.C.§ 1915A, the Court □ must accept all factual allegations inthe complaint as true, Boxer Xv. Harris, 437 F.3d 1107, 1110 (11th Cir, 2006). Pro se pleadings, like the one in this casey are “held toa □□□□ stringent standard than leadings drafted by attorneys and will, therefore, be liberally construed. Jd, (internal quotation marks omitted), Still, the Court must dismiss a prisoner complaint if it “(1) is frivolous, malicious, or fails state a claim upon which relief may
be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). A claim is frivolous if it “lacks an arguable basis either in Jaw or in fact.” Miler v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008) (internal quotation marks omitted). The Court may dismiss claims that are based on “indisputably meritless legal” theories and “claims whose factual contentions are clearly baseless.” Jd. (internal quotation marks omitted). A complaint fails to state a claim if it does not include “sufficient factual matter, accepted as true, to ‘state a claim to relief that is.plausible on its face.’” ‘Ashcroft. Iqbal, U.S. 662,.678 (2009) (quoting Bell'Ail. Corp. v, Twombly, 550 U.S. 544, 570 (2007).
Petitioner’s criminal conviction and expunge the charge from Petitioner’s criminal record. Even when liberally construed, Petitioner’s application does not seek relief available from □
this Court, as the United States District Courts do not have the authority to issue writs compelling action by state officials in the performance of their duties. See Moye vy. Clerk, DeKalb Chty. Superior Cour, 474 F 2d 1275, 1276 (Sth Cir, 1973) (per euriann) "see also □ □
Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir, 1981) (en banc), the Eleventh Circuit adopted as binding precedent the decisions of the former Fifth Circuit rendered prior to October |, 1981.
compelling action from state officials, not federal officials, the district court lacked jurisdiction to grant relief and did not err in dismissing the petition.”). Additionally, if this Court were to construe the petition as one for a writ of habeas corpus, Petitioner still would not be entitled to proceed. In particular, Petitioner has previously filed a habeas corpus petition in this Court, which was dismissed as untimely. Order Adopting R. & R., Johnson v. Hickman, Case No. 6:05-cv-00055-HL (M.D. Ga. June 22, 2006), ECF No. 26. “Before a second or successive application [for a writ of habeas corpus] is. filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to corisider the application,” 28U.S.C,
derict $38 US 108810000). oe . □ oe oe oe me □□ □□ Were it to be construed as a habeas petition, ihis pleading would be successive within the meaning of § 2244(b). Moreover, it does not appear, and Petitioner does not allege, that-a three-judge panel of the Eleventh Circuit Court of Appeals has authorized this Court lo consider a successive habeas petition for her conviction. Without such an order, this Court lacks jurisdiction to’ consider any successive claims, “See § 2244(b)(3)(A):
curiam). Accordingly, ‘this Petition is, subject to dismissal. pursuant to 28 USC. □
es CONCLUSION □□ For the reasons set forth above, Petitioner’s motion to proceed IF P is DENIED, and this action is DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C, § 1915(g).
Alternatively, the petition is DISMISSED WITHOUT PREJUDICE for failure to state a claim because the mandamus relief that Petitioner seeks is not available and the petition will not be construed as a habeas petition because such a petition would be impermissibly successive, Petitioner’s motions to appoint counsel (ECF Nos. 3 & 5) are DENIED AS MOOT, SO ORDERED, this 304 day of March 2026.
W. LOUIS SANDS, SR. JUDGE —