Marcus Anthony Terrell v. Edward Philbin; Officer Harmon; Counselor Smith; and Medical Director

CourtDistrict Court, S.D. Georgia
DecidedDecember 3, 2025
Docket1:25-cv-00178
StatusUnknown

This text of Marcus Anthony Terrell v. Edward Philbin; Officer Harmon; Counselor Smith; and Medical Director (Marcus Anthony Terrell v. Edward Philbin; Officer Harmon; Counselor Smith; and Medical Director) is published on Counsel Stack Legal Research, covering District Court, S.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Marcus Anthony Terrell v. Edward Philbin; Officer Harmon; Counselor Smith; and Medical Director, (S.D. Ga. 2025).

Opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA

AUGUSTA DIVISION

MARCUS ANTHONY TERRELL, ) ) Plaintiff, ) ) v. ) CV 125-178 ) EDWARD PHILBIN; OFFICER HARMON; ) COUNSELOR SMITH; and MEDICAL ) DIRECTOR, ) ) Defendants. )

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

Plaintiff, incarcerated Wilcox State Prison in Abbeville, Georgia, seeks to proceed in forma pauperis (“IFP”) in this action filed pursuant to 42 U.S.C. § 1983 concerning events alleged to have occurred in Augusta, Georgia. For the reasons set forth below, the Court REPORTS and RECOMMENDS Plaintiff’s request to proceed IFP be DENIED, (doc. no. 30), 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); see also Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 1726 (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. Rivera, 144 F.3d 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 and count as strikes: Terrell v. Caldwell, Case No. 21-13107-F (11th Cir. 2022) (dismissing appeal as frivolous); Terrell v. Warden, Case No. 20-12285 (11th Cir. 2021) (same); and Terrell v. Mun. Corp. of Gwinnett, Case No. 17-11734-H (11th Cir. 2017) (same). See Daker v. Jackson, 942 F.3d 1252, 1256 (11th Cir. 2019) (explaining denial of appeal as frivolous constitutes strike); Howard v. Kraus, 642 F. App’x 940, 943 (11th Cir. 2016) (agreeing both dismissal of appeal and cases underlying the appeal each constituted strikes); Zammiello v. Jones, No. 4:16CV572, 2016 WL 7007536, at *2 (N.D. Fla. Oct. 25, 2016) (same), adopted by 2016 WL 6988490 (N.D. Fla. Nov. 28, 2016). 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). See Mitchell v. Nobles, 873 F.3d 869, 873 (11th Cir. 2017). B. Plaintiff Does Not Qualify for the Imminent Danger Exception

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, 185 F.3d 1189, 1193 (11th Cir. 1999). General or conclusory allegations are “insufficient to invoke the exception to § 1915(g) absent specific fact allegations of ongoing serious physical injury, or of a pattern of misconduct evidencing the likelihood of imminent serious physical injury.” Sutton v. Dist. Atty’s Off., 334 F. App’x 278, 279 (11th Cir. 2009) (per curiam) (citing Brown v. Johnson, 387 F.3d 1344, 1350 (11th Cir. 2004)). Complaints of past injuries or vague claims of possible danger are insufficient to satisfy the exception. Jones v. Oliver, No. 7:24-cv-00097, 2024 WL 4933336, at *1 (M.D. Ga. Dec. 2, 2024). “The alleged imminent injury must be sufficiently serious, that

is, severe or life-threatening,” and the imminent danger exception is to be applied only in genuine emergencies. Id. (internal citations and quotation marks omitted). In his amended complaint and accompanying brief in support of his motion to proceed IFP, Plaintiff alleges he “suffers from ‘on going serious physical injury’ from a second (stroke) of physical loss of full function in his left arm/shoulder that it locks him up at times to date. In addition his legs swell sever [sic] at times that cause physical pain.” (Doc. no. 29, p. 28.) Plaintiff states he lost two teeth and still experiences pain on the left side of his upper body,

his left arm and hand, and his leg. (Id. at 16-17, 28-30.) He alleges these ongoing effects were caused by inadequate treatment in the months following several incidents, including a stroke

and separate injuries to his leg and teeth. (Id. at 16-17.) Plaintiff avers he was denied adequate treatment “due to discrimination, & sadistic & malicious cruel treatment…” (Id.) Plaintiff seeks monetary damages and injunctive relief. (Id. at 15.) Plaintiff’s allegations are insufficient to satisfy the imminent danger exception. Rather, his complaint largely rehashes various complaints about past events and allegedly inadequate medical care without describing any threat to Plaintiff’s current physical safety. (See generally id.) Although Plaintiff articulates serious ongoing effects from past injuries, he does not allege

imminent danger or ongoing injury based on his current treatment or conditions. (See generally id.) Indeed, he alleges no specific facts supporting any threat of ongoing or imminent serious physical injury whatsoever. In fact, Plaintiff explicitly references his current treatment plan: “Dr. Cowens at Wilcox State Prison… is now trying to treat the ongoing injury.” (Id. at 17 (cleaned up).) By his own admission, Plaintiff has not been denied all care. Cf. Brown, 387 F.3d at 1350 (recognizing exception satisfied where “total withdrawal of treatment for

serious diseases, as a result of which [the plaintiff] suffers from severe ongoing complications,” makes the plaintiff more susceptible to various illnesses and rapid health deterioration). None of these allegations show he is in imminent danger of serious physical injury so as to be exempted from the three strikes rule. See Odum v. Bryan Cnty. Jud. Cir., No. CV 4:07-181, 2008 WL 766661, at *1 (S.D. Ga. Mar. 20, 2008) (requiring specific allegations grounded in specific facts indicating injury is imminent). Thus, 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. C. The Complaint Should Also Be Dismissed Because Plaintiff Failed to Truthfully Disclose His Prior Filing History

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