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Taylor v. Wells

United States District Court, M.D. Alabama, Northern Division

February 12, 2018

ROBERT TAYLOR, #130 155, Plaintiff,
v.
DANIEL WELLS, et al, Defendants.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          GRAY M. BORDEN UNITED STATES MAGISTRATE JUDGE

         This 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."[1] 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).

         I. DISCUSSION

         Court records[2] 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).[3] 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).

         "General 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)).

         Here, 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.").

         Based 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).

         II. CONCLUSION

         Accordingly, 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.

         It is 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.

         Failure 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. ...


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