United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
WALLACE CAPEL, Jr., Magistrate Judge.
This case is before the court on a 42 U.S.C. § 1983 complaint filed by James Calvin Frazier ("Frazier"), an indigent state inmate presently incarcerated at the J.O. Davis Correctional Facility, challenging the constitutionality of actions arising from a criminal case proceeding on an indictment issued on July 26, 2005 by the Chilton County Grand Jury for felony DUI, a charge to which Frazier subsequently entered a guilty plea. In this complaint, Frazier alleges that due to the reversal of this conviction as a felony by the Alabama Court of Criminal Appeals in March of 2013 and its remand of the case for re-sentencing as a misdemeanor offense Judge Sibley Reynolds violated his due process rights upon imposition of the initial sentence on February 16, 2007. Compl. - Doc. No. 1 at 2-3; Amendment to Compl. - Doc. No. 7 at 2. Frazier further complains that the Alabama Court of Criminal Appeals and the Alabama Supreme Court violated his constitutional rights in remanding the case to the trial court for re-sentencing. Compl. - Doc. No. 1 at 3. In an amendment to the complaint, Frazier reiterates his claims against Judge Reynolds and names District Attorney Randall V. Houston and Municipal Judge Robert Bowers, Jr., as defendants for their allowing the case to proceed as a felony offense. Amendment to Compl. - Doc. No. 7 at 4. Frazier also names Glenn Baker, an officer of the Clanton Police Department and the City of Clanton, Alabama as defendants with respect to the constitutionality of his arrest for DUI on December 11, 2004. Id. at 4-5. Frazier requests that this court vacate his misdemeanor conviction, Compl. Doc. No. 1 at 4, Amendment to Compl. - Doc. No. 7 at 3, and seeks monetary damages from the defendants. Id. at 5.
Upon initiation of this case, Frazier filed a motion for leave to proceed in forma pauperis under 28 U.S.C. § 1915(a). Application to Proceed Without Prepayment of Fees -Doc. No. 2. However, 28 U.S.C. § 1915(g) directs that a prisoner is not allowed to bring a civil action or proceed on appeal in forma pauperis if he "has, on 3 or more 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." Consequently, an inmate in violation of the "three strikes" provision of § 1915(g) who is not in "imminent danger" of suffering a serious physical injury must pay the filing fee upon initiation of his case. Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002).
The records of this court establish that Frazier, while incarcerated or detained, has on at least three occasions had civil actions dismissed pursuant to the provisions of 28 U.S.C. § 1915 as frivolous, malicious, for failure to state a claim and/or for asserting claims against defendants immune from suit. The actions on which this court relies in finding a § 1915(g) violation by the plaintiff are: (1) Frazier v. Fuller, Case No. 2:12-CV-155-TMH-WC (M.D. Ala. 2012); (2) Frazier v. Fuller, Case No. 2:11-CV-159-TMH-WC (M.D. Ala. 2011); and (3) Frazier v. Fuller, Case No. 2:11-CV-81-WHA-WC (M.D. Ala. 2011).
In a recent case filed with this court,
... Frazier argues that because the court has ordered that he "mak[e] payments in the above [summarily dismissed] cases" from his inmate account pursuant to the directives of 28 U.S.C. 28 U.S.C. § 1915(b) as payments towards the filing fee in each such case, he is not required "to demonstrate serious physical injury" to proceed in any future federal civil action. Doc. No. 4 at 2. Frazier further argues that since he is required to submit intermittent partial payments towards the filing fees in the previously dismissed cases, "this court should not use the[se] cases as justification for dismissing" the instant case as "[t]here is no violation of the three strikes' provision of 28 U.S.C. § 1915(g)." Id. Frazier cites Heard v. Donald, 310 F.Appx. 348 (11th Cir. 2009), in support of this argument. However, upon review of the complaint and Frazier's status before this court, the court finds that Heard provides no support for the arguments set forth by Frazier because this court has not placed Frazier in "plus barred" status.
In Heard, the United States District Court for the Southern District of Georgia "had previously deemed Heard a serial filer'" and imposed a filing restriction upon him in addition to the three-strikes restriction contained in 28 U.S.C. § 1915(g). 310 F.Appx. at 349. The district court therefore "found [Heard] to be 28 U.S.C. § 1915(g)-plus barred' from filing claims under § 1983. Under this rule, the clerk of the court was instructed to not accept any of Heard's filings until he fully paid his outstanding filing fees in that district. " 310 F.Appx. at 349-50 (emphasis added). The Eleventh Circuit determined that the additional restriction imposed by the district court requiring full payment of filing fees for prior civil actions before accepting/filing any additional cases from Heard was inappropriate. Id. at 350. The Court, however, did not exempt Heard from the provisions of 28 U.S.C. § 1915(g).
This court has not placed any additional restriction on Frazier with respect to his ability to file civil actions, i.e., Frazier is not required to pay the full filing fees in his previous civil actions prior to filing a civil action and this court routinely accepts/files cases submitted by Frazier. Frazier is therefore not "plus barred" as was Heard. Consequently, the holding in Heard is not applicable to this case. In addition, any civil action filed by Frazier remains appropriately subject to review under the "three strikes" restriction contained in 28 U.S.C. § 1915(g).
Frazier v. Reynolds, et al., Case No. 2:15-CV-325-MHT-WC (M.D. Ala. 2015), Recommendation of the Magistrate Judge - Doc. No. 22 at 3-4.
In the amendment filed on June 24, 2015, Frazier presents allegations regarding his current conditions of confinement, conditions which are wholly unrelated to his claims for relief and for which the named defendants bear no responsibility, in an attempt to satisfy § 1915(g)'s "imminent danger" exception. Specifically, Frazier asserts that the J.O. Davis Correctional Facility is overcrowded, lacks an adequate number of correctional officers and houses a small percentage of inmates with Hepatitis C and AIDS. Amendment to Compl. - Doc. No. 8 at 6. Frazier therefore alleges that he "is under imminent danger of serious physical injury." Id. Despite Frazier's self-serving contention, the claims set forth in the amendment regarding his current conditions of confinement present nothing more than general allegations which merely contemplate potential harm that may at some time in the future befall Frazier. These conclusory and speculative allegations fail to demonstrate that Frazier was "under imminent danger of serious physical injury" at the time of filing this cause of action as is required to meet the exception to application of 28 U.S.C. § 1915(g). Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999) (A prisoner who has filed three or more frivolous lawsuits and seeks to proceed in forma pauperis must allege the existence of an "imminent danger of serious physical injury" at the time he files the complaint to evade application of the "three strikes" provision of 28 U.S.C. § 1915(g).); Warren v. Ellis County, Texas, 519 F.Appx. 319, 320 (5th Cir. 2013) (assertions regarding general conditions of cell and mere possibility of future medical problems resulting from stress of conditions failed to show inmate faced imminent danger of serious physical injury so as to avert application of 28 U.S.C. § 1915(g)); Johnson v. Warner, 200 F.Appx. 270, 272 (4th Cir. 2006) ("Vague, speculative, or conclusory allegations are insufficient to invoke the exception of § 1915(g)."); Vandiver v. Prison Health Services, Inc., 727 F.3d 580, 585 (6th Cir. 2013) (Prisoner's allegations regarding imminent danger must be "real and proximate" not speculative.); Andrews v. Cervantes, 493 F.3d 1047, 1056 (9th Cir. 2007) (The imminent danger exception requires that a prisoner allege a danger which is "ready to take place [or] hanging threateningly over one's head."); Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003) (General and/or conclusory allegations regarding conditions are not sufficient to establish the requisite imminent threat of serious physical harm.); Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002) (The imminent danger exception is "an escape hatch" available only "for genuine emergencies[, ]" where "time is pressing." The exception applies "[w]hen a threat or prison condition [made the basis of the complaint] is real and proximate, and when the potential consequence is serious physical injury[.]'"); Kinnell v. Graves, 265 F.3d 1125, 1128 (10th Cir. 2001) (Inmate must make specific and credible allegations that the threat to him is real and proximate.). Under the circumstance of this case, the imminent danger exception does not apply and Frazier cannot avoid the "three strikes" bar of 28 U.S.C. § 1915(g).
Additionally, as for the claims presented in the complaint, Frazier challenges actions undertaken by state trial judges and the district attorney in a criminal case and the decisions of the state appellate courts in remanding the case for re-sentencing. He also challenges the constitutionality of his DUI arrest in December of 2004. These allegations utterly and completely fail to demonstrate that Frazier was "under imminent danger of serious physical injury" at the time he filed this cause of action as is required to meet the exception to application of 28 U.S.C. § 1915(g). Medberry, 185 F.3d at 1193 (inmate must show "imminent danger" at time of filing the complaint to circumvent application of the "three strikes" provision of 28 U.S.C. § 1915(g).); Abdul-Akbar v. McKelvie, 239 F.3d 307, 315 (3d Cir. 2001) ("By using the term imminent, ' Congress indicated that it wanted to... prevent impending harms, not those harms that had already occurred.").
The court further notes that the alleged conditions set forth by Frazier in an effort to satisfy the imminent danger exception are wholly unrelated to the claims on which he seeks relief in this cause of action, i.e., claims challenging the constitutionality of his DUI arrest and subsequent conviction for this offense. Some courts have determined that an adequate nexus must exist between the clams made the basis of the complaint and the alleged imminent danger. Alston v. F.B.I., 747 F.Supp.2d 28, 31 (D.D.C. 2010) ("To qualify for [the imminent danger] exception, the prisoner must show that the action is connected to the imminent danger, Pettus v. Morgenthau, 554 F.3d 293, 296 (2d Cir. 2009)."). In ...