United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
M. BORDEN UNITED STATES MAGISTRATE JUDGE
case is before the court on a 42 U.S.C. § 1983 complaint
filed by Plaintiff, an indigent state inmate incarcerated at
the St. Clair Correctional Facility in Springville, Alabama.
Under 28 U.S.C. § 1915, a prisoner may not 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." 28 U.S.C. § 1915(g). 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).
records establish that Plaintiff, while
incarcerated or detained, has on at least three occasions had
civil actions or appeals dismissed as frivolous, as
malicious, for failure to state a claim, or for asserting
claims against defendants immune from suit under 28 U.S.C.
§ 1915(e)(2)(B). The cases on which this court relies in
finding a § 1915(g) violation are: (1) Taylor v.
Robinson, 2:06-CV-590-KOB-RRA (N.D. Ala. 2006)
(dismissed under 28 U.S.C. § l9l5(e)(2)(B)(i) &
(ii)); (2) Taylor v. FBI (Montgomery),
2:07-CV-671-WKW-WC (M.D. Ala. 2007) (dismissed under 28
U.S.C. § l9l5(e)(2)(B)(i) & (iii)); (3) Taylor
v. Hale, l:15-CV-465-KD-C (S.D. Ala. 2015) (dismissed
under 28 U.S.C. § l9l5(e)(2)(B)(ii)); and (4) Taylor
v. Robinson, 2:08-CV-311-SLB-RRA (N.D. Ala. 2008)
(dismissed under 28 U.S.C. § l9l5(e)(2)(B)(ii)). This
court concludes that these summary dismissals place Plaintiff
in violation of 28 U.S.C. § 1915(g).
allegations that are not grounded in specific facts which
indicate that serious physical injury is imminent are not
sufficient to invoke the exception to § 1915(g)."
Niebla v. Walton Corr. Inst, 2006 WL 2051307, *2
(N.D. Fla. July 20, 2006) (citingMartin v. Shelton,
319 F.3d 1048, 1050 (8th Cir. 2003)). "The 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, and vague allegations of harm and unspecific
references to injury are insufficient." Id.
(internal quotations omitted) (citing Martin, 319
F.3d at 1050, and White v. State of Colorado, 157
F.3d 1226, 1231 (10th Cir. 1998)).
Plaintiff sues Defendants Daniel Wells and Lee Hill, Jr.,
challenging matters associated with the criminal court
proceedings that resulted in his convictions for attempted
murder and first degree arson. The court has carefully
reviewed the claims in the instant action. Even construing
all allegations in favor of Plaintiff, his claims do not
entitle him to avoid § 1915(g) because they do not
allege or indicate that he was "under imminent danger of
serious physical injury" when he filed this cause of
action as required to meet the imminent danger exception to
the application of 28 U.S.C. § 1915(g). Medberry v.
Butler, 185 F.3d 1189, 1193 (11th Cir. 1999) (holding
that a prisoner who has filed three or more frivolous
lawsuits or appeals and seeks to proceed in forma
pauperis must present facts sufficient to demonstrate
"imminent danger" to circumvent application of the
"three strikes" provision of 28 U.S.C. §
1915(g)); Lewis v. Sullivan, 279 F.3d 526, 531 (7th
Cir. 2002) (noting the imminent danger exception is available
only "[w]hen a threat or prison condition is real and
proximate, and when the potential consequence is 'serious
physical injury'"); 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.").
on the foregoing and Plaintiffs failure to pay the requisite
filing and administrative fees upon initiation of this case,
the court concludes that this case is due to be summarily
dismissed without prejudice. Dupree, 284 F.3d at
1236 ("[T]he proper procedure is for the district court
to dismiss the complaint without prejudice when [an inmate is
not entitled] to proceed in forma pauperis [due] to
[violation of] the provisions of § 1915(g)" because
the prisoner "must pay the filing fee at the time he
initiates the suit."); Vanderberg v.
Donaldson, 259 F.3d 1321, 1324 (11th Cir. 2001) (same).
it is the RECOMMENDATION of the Magistrate Judge that:
1. Plaintiffs motion for leave to proceed in forma
pauperis (Doc. 4) be DENIED; and
2. This case be DISMISSED without prejudice for Plaintiffs
failure to pay the filing and administrative fees upon his
initiation of this case.
further ORDERED that on or before February 26,
2018, Plaintiff may file an objection to this
Recommendation. Any objection filed must specifically
identify the factual findings and legal conclusions in the
Magistrate Judge's Recommendation to which Plaintiff
objects. Frivolous, conclusive or general objections will not
be considered by the District Court.
to file a written objection to the proposed findings and
recommendations in the Magistrate Judge's report shall
bar a party from a de novo determination by the
District Court of factual findings and legal issues covered
in the report and shall "waive the right to challenge on
appeal the district court's order based on unobjected-to
factual and legal conclusions" except upon grounds of
plain error if necessary in the interests of justice. 11th
Cir. R. 3-1; see Resolution Trust Co. ...