United States District Court, M.D. Alabama, Northern Division
WILLIAM L. CROSBY, Petitioner,
REBECCA OATES, JULIA JORDAN WELLER, AND LUTHER STRANGE, Respondent.
HAROLD ALBRITTON SENIOR UNITED STATES DISTRICT JUDGE.
case is before the court on the Recommendation of the
Magistrate Judge (Doc. #12), entered on March 21, 2017, and
the Plaintiff's Objection thereto (Doc. #13). The court
has conducted an independent evaluation and de novo
review of the file in this case, and finds as follows:
42 U.S.C. § 1983 action, the inmate plaintiff, William
Crosby, challenges actions taken in December of 2015 by the
Clerk of the Alabama Court of Civil Appeals, the Clerk of the
Alabama Supreme Court and the Attorney General for the State
of Alabama with respect to an action he initially filed with
the Alabama Court of Civil Appeals regarding his 2003 Mobile
County murder conviction. After reviewing the records of the
federal courts of this state, it was determined that the
instant complaint presents claims virtually identical to
those raised in Crosby v. State of Alabama, et al.,
Civil Action No. 1:16-CV-70-KD-C (S.D. Ala. 2016). Although
Crosby styled his Southern District case as a "Petition
for Writ for Order [to] Show Cause" and the Clerk for
that court entered the case as a Section 2254 Petition for
Writ of Habeas Corpus, the Court, in addressing the
complaint, construed it as a 42 U.S.C. § 1983 action.
Crosby v. State of Alabama, et al., Civil
Action No. 16-CV-70-KD-C (S.D. Ala. 2016), Report and
Recommendation of the Magistrate Judge - Doc. No. 3 at 6-7,
adopted as opinion of the court, June 8, 2016 - Doc. No. 5
("Despite Crosby's insistence that this action is
not a § 1983 action . . . his position is belied by the
characterization of his claim [set forth in the complaint] as
a denial of access to the state courts of Alabama . . .
(alleging that his constitutional rights were violated when
the clerk of court denied him access to the Alabama Court of
Civil Appeals for a decision regarding his request for
declaratory judgment under Rule 57 of the Federal Rules of
Civil Procedure), a decidedly § 1983 claim[.] . . .
Thus, the undersigned considers plaintiff's denial of
access to court claim as arising under 42 U.S.C. §
1983."). Based on its construction of the action as one
filed under § 1983 and in accordance with law applicable
to such complaints, the Southern District summarily dismissed
the case "for failure to state a claim pursuant to 28
U.S.C. § 1915A(b)(1) and, alternatively, as frivolous in
accordance with this same statutory subsection."
Id. at 11. The Magistrate Judge utilized the
Southern District's summary dismissal of Crosby's
§ 1983 action as a "strike" against him, along
with another case and appeal that had been dismissed as
frivolous, in finding that he had violated the "three
strikes" provision of 28 U.S.C. § 1915(g). (Doc.
No. 12 at 3).
April 6, 2017, Crosby filed an objection to the
Recommendation in which he initially argues that the District
Court for the Southern District "construed Crosby's
issue as mandamus, not § 1983." (Doc. No. 13 at 3).
The recitation of the Recommendation issued by the Southern
District set forth above clearly refutes Crosby's
assertion. His assertion, however, is based on language in
footnote 8 of the Southern District's Recommendation
where the court states that: "Alternatively, the
undersigned would note that Crosby's sole request that
this Court enter a show cause order to the defendants
respecting the 'policy that cause Crosby a federal
constitutional violation, to access the state court-civil-for
declaratory judgment under Fed.Civ.R.Pro.57' amounts to
a request that this Court issue a writ of mandamus directing
the defendants--and, by extension, Alabama's appellate
courts--to immediately entertain his petition for injunctive
relief and declaratory judgment. . . . And because this Court
lacks jurisdiction to compel action from the Clerks of the
Alabama Supreme Court and the Alabama Court of Civil appeals,
as Crosby requests, . . . Crosby's complaint must be
dismissed as frivolous[.]" Crosby v. State of
Alabama, et al., Civil Action No. 16-CV-70-KD-C (S.D.
Ala. 2016), Report and Recommendation of the Magistrate Judge
- Doc. No. 3 at 11, n.8 (internal citations omitted). The
language in the footnote does not impugn or alter the
Southern District's determination that the complaint
constituted a § 1983 action subject to dismissal as
frivolous under § 1915A(b)(1). Thus, this objection to
the Recommendation entered herein provides no basis for
majority of the Objection, the plaintiff argues the merits of
his claims. However, the Magistrate Judge did not reach the
merits as the plaintiff was in violation of the "three
strikes" provision of 28 U.S.C. § 1915(g) and the
merits of a complaint are irrelevant to such determination.
Crosby next argues that the current "problems in [the]
Alabama prison" system as reported by the media meet the
imminent danger exception contained in § 1915(g). As
stated in the Recommendation, general allegations regarding
prison conditions fail to satisfy the imminent danger
exception. Doc. No. 12 at 4-5. Finally, Crosby appears to
argue that his being attacked by another inmate in 2015,
see Exh. A to Objection - Doc. No. 13-1, warrants
relief under § 1915(g)'s imminent danger exception.
However, an attack on Crosby in 2015 fails to show that he
was in imminent danger when he filed this case in February of
2017. See Owens v. Schwartz, 519 App'x 992, 994
(11th Cir. 2013) (citing Medberry v. Butler, 185
F.3d 1189, 1193 (11th Cir. 1991) ("An allegation of past
imminent danger will not invoke the 'imminent danger'
on the foregoing, the arguments contained in the Objection
fail to undermine the findings in the Recommendation entered
by the Magistrate Judge on March 21, 2017 (Doc. No. 12), and
it is hereby ORDERED as follows:
1. The Objection is OVERRULED.
2. The court adopts the Recommendation of the Magistrate
3. The Plaintiff's Motion for Leave to Proceed In Forma
Pauperis is DENIED.
4. The Plaintiff's Motion for Preliminary Injunction is
5. This case is DISMISSED without prejudice for the
Plaintiff's failure to pay the full filing and
administrative fees ...