Sutton v. District Attorney's Office of Gwinnett Superior Court , 334 F. App'x 278 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 23, 2009
No. 08-17001 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-03514-CV-TWT-1
DAVID CHARLES SUTTON,
Plaintiff-Appellant,
versus
DISTRICT ATTORNEY’S OFFICE,
of Gwinnett Superior Court,
STATE OF GEORGIA,
et al,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(June 23, 2009)
Before BIRCH, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:
Plaintiff-appellant David Charles Sutton, a prisoner proceeding pro se,
appeals the district court’s sua sponte dismissal without prejudice of his Petition
for Injunctive Relief pursuant to 28 U.S.C. § 1915(g). For the following reasons,
we affirm.
Section 1915(g), the three strikes provision, bars a prisoner, who has filed
three or more complaints that have been dismissed as frivolous or malicious or for
failure to state a claim, from filing a complaint in forma pauperis, unless the
prisoner is “under imminent danger of serious physical injury.” On appeal, Sutton
does not dispute that he has more than three strikes under section 1915(g). Sutton,
therefore, may not bring his action in forma pauperis unless he sufficiently alleges
that he is under imminent danger of serious physical injury. See Brown v.
Johnson, 387 F.3d 1344, 1349-50 (11th Cir. 2004) (holding that complaint
sufficiently alleged imminent danger of serious physical injury where prisoner
asserted that he was in danger of more serious afflictions if he continued to not be
treated for his HIV and hepatitis).
Sutton filed his Petition for Injunctive Relief in forma pauperis, alleging that
during his 1997 criminal trial, the District Attorney’s Office of Gwinnett Superior
Court, the State of Georgia, and unnamed additional defendants wrongfully
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withheld evidence which Sutton alleged would have been favorable to his defense.
It is uncontested that the Petition did not allege that Sutton was in any imminent
danger of serious physical injury. Accordingly, after taking judicial notice of the
five prior cases filed by Sutton which were dismissed as frivolous, the district court
properly dismissed the Petition pursuant to the “three strikes” provision of
28 U.S.C. § 1915.
In his brief on appeal, Sutton provides no argument regarding the district
court’s dismissal pursuant to § 1915(g), opting instead to argue the merits of his
underlying complaint. After commencing his appeal, however, Sutton submitted
an “Affidavit of Indigency,” in which he asserted that he is “in imminent physical
danger of growing older and is in grave danger of perhaps dying here in this prison
system.” He also asserted that his allegedly “illegal sentence and conviction” has
“endanger[ed his] physical health” by “causing him stress, anxiety, depression, and
further his life is deteriorating here inside this Georgia state prison for no reason at
all.” We conclude that these types of general assertions, even construed liberally,
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.” Brown, 387 F.3d
at 1350 (citing Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003)). Thus, we
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agree with the district court that Sutton has failed to establish that he is entitled to
the imminent danger exception to the three strike rule and we AFFIRM the district
court’s judgment.
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