United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
BRADLEY MURRAY UNITED STATES MAGISTRATE JUDGE
Robert Taylor, an Alabama prison inmate proceeding pro
se, filed a complaint under 42 U.S.C. § 1983 and a
motion to proceed without prepayment of fees. (Docs. 1, 2, 4).
Upon review of the complaint and Taylor's litigation
history, it is recommended that this action be dismissed
without prejudice pursuant to 28 U.S.C. § 1915(g),
because Taylor is barred from proceeding in forma
pauperis and did not pay the filing fee at the time he
filed this action.
Section 1915(g) and Taylor's Litigation
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.
28 U.S.C. § 1915(g).
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), abrogated on other grounds by Jones
v. Bock, 549 U.S. 199, 215-16 (2007).
Taylor sought leave to proceed in forma pauperis,
the Court reviewed the records of the United States District
Court for the Southern, Middle, and Northern Districts of
Alabama to determine if he has three or more actions and
appeals that were dismissed on the grounds that they were
frivolous, malicious, or failed to state a claim upon which
relief may be granted. From those dockets, the Court
discovered that Taylor has had at least three actions
dismissed for one of the foregoing reasons, namely,
Taylor v. Hale, CA 15-0465-KD-C (S.D. Ala. 2015)
(dismissed for failure to state a claim); Taylor v.
Robinson, CA 08-0311-SLB-RRA (N.D. Ala. 2008) (dismissed
as frivolous and for failure to state a claim); Taylor v.
Robinson, CA 06-0590-KOB-RRA (N.D. Ala. 2006) (dismissed
as frivolous and for failure to state a claim); and
Taylor v. FBI (Montgomery), CA
07-0671-WKW-WC (M.D. Ala. 2007) (dismissed pursuant to §
1915(e)(2)(B)(i) (frivolous) and (iii) (seeking damages from
a person entitled to immunity from damages)).
Section 1915(g)'s Exception.
in order to avoid the dismissal of the present action
pursuant to § 1915(g), Taylor must satisfy §
1915(g)'s exception, which requires that at the time of
the complaint's filing, he show that he was “under
imminent danger of serious physical injury.”
See Medberry v. Butler, 185 F.3d 1189, 1193
(11th Cir. 1999) (the imminent danger of serious physical
injury must be faced at the time the complaint is filed, not
at a prior time); Adbul-Akabar 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
determine if § 1915(g)'s exception is met, the
“complaint, as a whole, [must] allege imminent danger
of serious physical injury.” Brown v. Johnson,
387 F.3d 1344, 1350 (11th Cir. 2004). 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, 2007 WL
484547, at *1 (S.D. Ala. 2007) (unpublished) (Granade, C.J.).
Taylor has not done this.
complaint, Taylor sued Daniel Wells, a person who was hired
by his attorney to determine if he was competent to stand
trial. (Doc. 4 at 4). According to Taylor, at trial,
Defendant Wells was not present, and the judge did not hear
any competency information. (Id.). Taylor states
that this incident occurred on October 14, 2015
(Id.), which is the date given for his convictions
for first-degree arson and for attempted murder.
(Id. at 11). Taylor then filed the instant action on
August 2, 2017. (Doc. 1).
Section 1915(g) requires that Taylor be in imminent danger of
serious physical injury when the complaint is filed. 28
U.S.C. § 1915(g). Taylor filed his complaint on August
2, 2017 and bases his claims on an event that occurred on
October 14, 2015. The Court finds therefore that Taylor was
not in imminent danger of serious physical injury when he
filed the present action on August 2, 2017. Moreover, his
allegations do not describe a serious physical injury, much
less an injury that is imminent. Thus, the Court concludes
that Taylor has not carried his burden of showing that he was
in imminent danger of serious physical injury at the time of