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May v. Barber

United States District Court, S.D. Alabama, Southern Division

January 21, 2015

DERIC LaVELLE MAY, AIS # 209534, Plaintiff,

Deric LaVelle May, Plaintiff, Pro se, Atmore, AL.



This § 1983 action, filed by an Alabama prison inmate proceeding pro se, was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(4) for appropriate action. When the complaint was filed, plaintiff did not file a motion to proceed without prepayment of fees nor pay the $400 filing fee, which he is required to pay as a " three-striker" unless he meets the exception to 28 U.S.C. § 1915(g). After reviewing plaintiff's complaint, it is recommended that this action be dismissed without prejudice pursuant to 28 U.S.C. § 1915(g).

Section 1915(g) provides:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section [28 U.S.C. § 1915] 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.

The purpose of this section is to curb abusive prisoner litigation by requiring a prisoner who has had three actions or appeals dismissed as meritless to pay the full filing fee when his next action is filed. Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002). " The only exception to section 1915(g) is if the frequent filer prisoner is 'under imminent danger of serious physical injury.'" Rivera v. Allin, 144 F.3d 719, 723 (11th Cir. 1998), overruled on other grounds by Jones v. Bock, 549 U.S. 199, 215-16, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007).

Even though plaintiff is known to this Court as a " three-striker, " the Court reviewed the records of the United States District Court for the Southern, Middle, and Northern Districts of Alabama to verify that he has three or more in forma pauperis actions or appeals that were dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief can be granted. From this review the Court discovered plaintiff has seven actions and appeals that were dismissed based on one of the foregoing reasons, namely, May v. Culliver, CA 10-0121-CG-C, (S.D. Ala. Feb. 24, 2012) (failure to state a claim), appeal dismissed (11th Cir. Sept. 20, 2012) (frivolous); May v. Patterson, CA 12-0703-KD-N, (S.D. Ala. Sept. 5, 2013) (malicious), appeal dismissed (11th Cir. June 4, 2014) (frivolous); May v. Barber, CA 13-0237-CB-C, (S.D. Ala. July 22, 2013) (malicious), appeal dismissed (11th Cir. July 24, 2014) (frivolous); May v. Patterson, App. No. 13-14499-C, (11th Cir. June 26, 2014) (frivolous) (corresponding district court case is CA 11-0675-KD-B, (S.D. Ala. Sept. 9, 2013) (dismissed on defendants' summary judgment motion)).[1]

In order to avoid the dismissal of the present action pursuant to § 1915(g), plaintiff must satisfy the exception to § 1915(g), which requires that at the time of the complaint's filing, he show that he was " under imminent danger of serious physical injury." See Abdul-Akbar v. McKelvie, 239 F.3d 307, 315 (3d Cir. 2001) (" By using the term 'imminent, ' Congress indicated that it wanted to include a safety valve for the 'three strikes' rule to prevent impending harms, not those harms that had already occurred."), cert. denied, 533 U.S. 953, 121 S.Ct. 2600, 150 L.Ed.2d 757 (2001); Brown v. Johnson, 387 F.3d 1344, 1349 (11th Cir. 2004) (" a prisoner must allege a present imminent danger, as opposed to a past danger, to proceed under section 1915(g)"); Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999) (the plaintiff must face imminent danger of serious physical injury at the time the complaint is filed, not at a prior time).

In determining if the exception to § 1915(g) is satisfied, " the issue is whether his complaint, as a whole, alleges imminent danger of serious physical injury." Brown, 387 F.3d at 1350. To make this showing, a plaintiff " must allege and provide specific fact allegations of ongoing serious physical injury, or a pattern of misconduct evidencing the likelihood of imminent serious physical injury[.]" Ball v. Allen, CA No. 06-0496-CG-M, 2007 WL 484547, at *1 (S.D. Ala. Feb. 8, 2007) (citation and quotation marks omitted) (unpublished) (Granade, C.J.). Plaintiff has not done this.

On October 14, 2014, the Court received plaintiff's complaint signed October 9, 2014 and postmarked October 10, 2014. (Id. at 7). In the complaint the plaintiff specifies that the date of the complained of incident is April 11, 2013, which is when the sole defendant, Dr. Barber, allegedly did not request a consultation so plaintiff could be evaluated. (Id. at 5).

Plaintiff's facts supporting his claim reflect that " on April 11, 2013, [plaintiff] placed a grievance on file that his medical reports confirmed that Dr. Quindlen had impressions of a cerebral AVM." (Id. at 4). The Health Service Administrator told plaintiff that he spoke with defendant Barber, who said that she would request a consultation for plaintiff with a neurosurgeon. (Id.). Plaintiff complains that months passed and an appointment was not set up. (Id.).

In his allegations, plaintiff defines arterial venous malformation (" AVM"), [2] and states that

He has never received medical care for [his AVM] and he has ongoing complications such as headaches etc. and condition will deteriorate. Further at any time, . . . it pose[s] an imminent danger of serious physical injury to [plaintiff] due to [his] condition [being] left untreated[; ] therefore [defendant Barber] placed [plaintiff's] health into jeopardy [of] ongoing danger. These are not conclusory allegations. It is a known fact that AVM's ...

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