Henderson v. Mercer

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

VALDOSTA DIVISION

KEITH HENDERSON, :

:

Plaintiff, :

VS. : NO. 7:21-CV-00053-HL-TQL

:

Judge WADE MERCER, et al., :

:

Defendants. :

________________________________ :

ORDER

Presently pending before the Court are a Complaint (ECF No. 1) and Amended

Complaint (ECF No. 4) filed by pro se Plaintiff Keith Henderson, a prisoner currently

incarcerated at the Suwannee Correctional Institution in Live Oak, Florida. Plaintiff has

also moved for leave to proceed in forma pauperis in this action (ECF No. 2) and seeks

appointed counsel (ECF No. 5). For the reasons discussed below, Plaintiff’s claims

concerning his incarceration in Florida are SEVERED and TRANSFERRED to the

Middle District of Florida. Plaintiff’s pending motion for leave to proceed in forma

pauperis is DENIED, and Plaintiff’s remaining claims are DISMISSED without

prejudice pursuant to 28 U.S.C. § 1915(g). Plaintiff’s motion for appointed counsel is

also DENIED as moot.

I. Order to Sever and Transfer

A plaintiff may set forth only related claims in a single lawsuit. A plaintiff may not

join unrelated claims and various defendants in his complaint unless the claims arise “out

of the same transaction, occurrence, or series of transactions or occurrences; and . . . any

question of law or fact common to all defendants will arise in the action.” Fed. R. Civ. P.

20(a)(2) (emphasis added). The Eleventh Circuit applies the “logical relationship” test to

determine whether claims arise from the same transaction or occurrence for joinder

purposes. See, e.g., Smith v. Trans-Siberian Orchestra, 728 F. Supp. 2d 1315, 1319 (M.D.

Fla. 2010) (citing Republic Health Corp. v. Lifemark Hosp. Corp. of Fla., 755 F.2d 1453,

1455 (11th Cir. 1985)).1 “Under this test, there is a logical relationship when the same

operative facts serve as the basis of both claims or the aggregate core of facts upon which

the claim rests activates additional legal rights, otherwise dormant, in the defendant.”

Republic Health Corp., 755 F.2d at 1455 (internal quotation marks omitted).

In this case, the claims made in Plaintiff’s Complaint and Amended Complaint are

largely unintelligible. As best as the Court can tell, however, Plaintiff appears to raise two

distinct sets of claims. First, he challenges his previous incarceration in the Georgia state

prison system. Second, he challenges his current incarceration in the Florida state prison

system. Plaintiff has not alleged any facts suggesting that a logical relationship exists

between these two sets of claims. Because joinder of these of claims is therefore

inappropriate, Plaintiff’s claims based on his Florida incarceration will be SEVERED

from this action. See Fed. R. Civ. P. 21; see also DirecTV, Inc. v. Leto, 467 F.3d 842,

844-45 (3d Cir. 2006) (holding that “district judges have discretion to remedy misjoinders

either by severing claims or dismissing them without prejudice”). Venue as to Plaintiff’s

1 The standard for whether claims arise from the same transaction or occurrence for Rule

20 purposes is the same as that used for compulsory counterclaims under Federal Rule of

Civil Procedure 13. See Smith, 728 F. Supp. 2d at 1319.

claims arising from his Florida incarceration is not proper in this district, however. Those

claims involve events that appear to have occurred at the Suwannee Correctional

Institution, which is located in Suwannee County, Florida. See 28 U.S.C. § 1391(b). It is

therefore ORDERED that Plaintiff’s severed claims be TRANSFERRED to the Middle

District of Florida. See 28 U.S.C. § 1406(a) (authorizing district court to “dismiss, or if it

be in the interest of justice, transfer such case to any district . . . in which it could have been

brought”); see also Brownsberger v. Nextera Energy, Inc., 436 F. App’x 953, 953 (11th

Cir. 2011) (per curiam) (affirming district court’s dismissal of claims against remaining

defendants under § 1406(a) after dismissing one defendant for lack of personal

jurisdiction); 28 U.S.C. § 89(b).

II. Plaintiff’s Remaining Claims

Plaintiff’s remaining claims arise from his incarceration in several Georgia prisons.

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.

28 U.S.C. § 1915(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,

185 F.3d 1189, 1192 (11th Cir. 1999); see also Daker v. Comm’r, Ga. Dep’t of Corr., 820

F.3d 1278, 1283-84 (11th Cir. 2016) (confirming that “these three grounds are the only

grounds that can render a dismissal a strike”). 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. Id.

A review of court records on the Federal Judiciary’s Public Access to Court

Electronic Records (“PACER”) database reveals that Plaintiff has filed a host of frivolous

and meritless cases in federal court and that “his status as a three-strikes plaintiff cannot

seriously be disputed.” Henderson v. Thrash, No. 1:14-CV-00202-NT, 2014 WL 2944065,

at *1 (D. Me. June 30, 2014). Plaintiff has been identified as an abusive and vexatious

litigant for filing numerous actions without a plausible factual or legal basis, and the

Southern District of Georgia even enjoined Plaintiff from refiling in any federal district

court for at least two years unless Plaintiff presented sworn allegations that he was under

imminent danger of serious physical injury. See Order, In re Keith Henderson, ECF No. 1

in Case No. 3:12-mc-002 (S.D. Ga. Dec. 18, 2012). Orders dismissing Plaintiff’s

complaints as frivolous, malicious, or for failing to state a claim upon which relief may be

granted include, but are certainly not limited to: Order Dismissing Compl., Henderson v.

Jackson, ECF No. 7 in Case No. 7:14-cv-00208-HL-TQL (M.D. Ga. Feb. 27, 2015)

(dismissing pursuant to 28 U.S.C. § 1915(g) and for failing to state a claim under §

1915A(b)); Order Dismissing Compl., Henderson v. Hall, ECF No. 16 in Case No. 1:14-

cv-00438-REB (D. Idaho Jan. 15, 2015) (dismissing as frivolous and malicious); Order

Dismissing Compl., Henderson v. Georgia, ECF No. 2 in Case No. 1:15-cv-01007-JES

(C.D. Ill. Jan. 15, 2016) (dismissing as frivolous and malicious). Plaintiff is accordingly

barred from prosecuting this action in forma pauperis unless he is in imminent danger of

serious physical injury. 28 U.S.C. § 1915(g).

To qualify for the § 1915(g) 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, 334 F.

App’x 278, 279 (11th Cir. 2009) (per curiam) (internal quotation marks omitted).

Complaints of past injuries are not sufficient. See Medberry, 185 F.3d at 1193. Vague and

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

157 F.3d 1226, 1231 (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, 279 F.3d 526, 531 (7th Cir. 2002).

Plaintiff’s original Complaint frankly makes no sense, and it contains no plausible

references to any set of facts that could perhaps constitute an imminent danger of serious

physical injury. See, e.g., Gibbs v. Cross, 160 F.3d 962, 967 (3d Cir. 1998) (holding that

a district court may “discredit[] factual claims of imminent danger that are ‘clearly

baseless,’ i.e., allegations that are fantastic or delusional and rise to the level of the

‘irrational or wholly incredible’”).

Plaintiff’s Amended Complaint (ECF No. 4) is also largely incomprehensible,

although Plaintiff does contend that he was “attacked by physical injury” while he was

incarcerated in Georgia and appears to make other references to harm he incurred while in

the Georgia prison system. Am. Compl. 22-23, ECF No. 4. But the fact that Plaintiff was

housed in a Florida prison at the time he filed this action demonstrates that his Georgia

claims occurred in the past and thus did not pose any imminent danger. See, e.g., Medberry,

185 F.3d at 1193 (holding that allowing plaintiff to amend complaint would be futile

because the plaintiff could not show that he was in imminent danger of serious physical

injury from being placed in the general population at the prison where he was housed when

he filed his complaint because he was transferred to another facility shortly after filing);

Owens v. Schwartz, 519 F. App’x. 992, 994 (11th Cir. 2013) (per curiam) (holding that

“even if [prisoner] had been in imminent danger of serious physical injury from his cell

mate and the failure of prison officials to protect him, that danger had passed” when he was

transferred after he filed his complaint and “[a]n allegation of past imminent danger will

not invoke the ‘imminent danger’ exception”); cf. also Barber v. Krepp, 680 F. App’x 819,

821-22 & n.3 (11th Cir. 2017) (rejecting argument that prisoner’s transfer to another prison

rendered imminent danger inquiry moot because prisoner had alleged facts suggesting that

retaliation would continue regardless of transfer, but suggesting that “if it later becomes

clear that the transfer has ended any risk of retaliation, the district court would be obligated

to reconsider this issue”).

Plaintiff has therefore failed to establish that he should be excepted from the §

1915(g) bar, and his motion leave to proceed in forma pauperis is accordingly denied

without prejudice to his right to refile with pre-payment of the full $400 filing fee. See

Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (per curiam) (“[T]he 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 to the three strikes provision of §

1915(g).”).

III. Conclusion

For foregoing reasons, Plaintiff’s claims concerning his incarceration in Florida are

SEVERED and TRANSFERRED to the Middle District of Florida. Plaintiff’s pending

motion for leave to proceed in forma pauperis (ECF No. 2) is DENIED, and Plaintiff’s

remaining claims concerning his previous incarceration in Georgia are DISMISSED

without prejudice pursuant to 28 U.S.C. § 1915(g). Plaintiff’s motion to appoint counsel

(ECF No. 5) is DENIED as moot.

SO ORDERED, this 18th day of June, 2021.

s/ Hugh Lawson

HUGH LAWSON, SENIOR JUDGE