United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
F. BIVINS UNITED STATES MAGISTRATE JUDGE
action is before the Court on Plaintiff Marcus
Tate'smotion to proceed without prepayment of
fees. (Doc. 4). This action was referred to the
undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and
S.D. Ala. GenLR 72(a)(2)(R) for appropriate action. For the
reasons set forth below, it is recommended that Tate's
motion for leave to proceed without prepayment of fees be
DENIED, and that this action be dismissed
without prejudice pursuant to 28 U.S.C. § 1915(g).
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.
section is intended to curb abusive prisoner litigation by
requiring prisoners who have had three actions or appeals
dismissed as meritless to pay the full filing fee when their
next action is filed. Dupree v. Palmer, 284 F.3d
1234, 1236 (11th Cir. 2002); Vanderberg v.
Donaldson, 259 F.3d 1321, 1324 (11th Cir. 2001).
“The only exception to section 1915(g) is if the
frequent flier prisoner is ‘under imminent danger of
serious physical injury.'” Rivera v.
Allin, 144 F.3d 719, 723 (11th Cir. 1998)(citation
omitted), overruled on other grounds by Jones v.
Bock, 549 U.S. 199, 215-16 (2007); see also Brown v.
Johnson, 387 F.3d 1344, 1349 (11th Cir.
2004)(“[The] Eleventh Circuit [has] determined that a
prisoner must allege a present imminent danger . . . under
section 1915(g)”); Medberry v. Butler, 185
F.3d 1189, 1193 (11th Cir. 1999)(noting that plaintiff could
not proceed under § 1915(g) because he failed to allege
“that he was in imminent danger of serious physical
injury at the time he filed his complaint or that he was in
jeopardy of any ongoing danger”).
review of Tate's motion, the Court discovered, after
reviewing the records of the United States District Courts
for the Southern, Middle, and Northern Districts of Alabama,
that Tate has at least three actions or appeals that were
previously dismissed as frivolous, malicious, or for failure
to state a claim upon which relief can be granted.
See, e.g., Taite v. Walker, 2014
WL 7411800 (S.D. Ala. Dec. 31, 2014) (dismissing action under
§ 1915(g)); Tate v. Alabama, 2010 WL 3155281,
2010 U.S. Dist. LEXIS 79615 (S.D. Ala. Aug. 4, 2010)
(dismissing action under § 1915(g)); Tate v.
Bivins, 2008 WL 2705388, 2008 U.S. Dist. LEXIS 52754
Tate v. Bass, 2007 WL 4571256, 2007 U.S. Dist. LEXIS
94158 (M.D. Ala. Dec. 26, 2007) (recommending dismissal under
§ 1915(g)), report and recommendation adopted by
Tate v. Bass, 2008 WL 160599, 2008 U.S. Dist. LEXIS 3093
(M.D. Ala. Jan. 15, 2008).
in order to avoid the dismissal of the present action
pursuant to § 1915(g), Tate must satisfy the exception
to § 1915(g). In other words, he must demonstrate that
at the time he filed the instant complaint, he was
“under imminent danger of serious physical
injury.” Medberry v. Butler, 185 F.3d 1189,
1193 (11th Cir. 1999) (holding that the plaintiff must face
imminent danger of serious physical injury at the time the
complaint is filed, not at a prior time).
carefully reviewing Plaintiff's allegations (Doc. 1), the
Court cannot discern a claim showing that Tate was under
imminent danger of serious physical injury at the time he
filed his complaint. As best this Court can discern, the gist
of Tate's complaint is that he was “illegally
arrested” at his home based on an invalid warrant and
without sufficient evidence to support his
seizure. (Id. at 9-11). To the extent that
Plaintiff asserts any legal claims, they all seem to stem
from his contention that the warrant used to detain him was
“illegal.” Nothing in his complaint suggests that
Plaintiff is alleging that he is in danger of serious
physical injury. Instead, he has filed an action under §
1983 challenging the validity of his
absence of facts showing that Plaintiff was under
“imminent danger of serious physical injury” at
the time he filed his complaint, he cannot avail himself of
§ 1915(g)'s exception. As a result, his failure to
pay the $400.00 filing fee at the time he filed this action
necessitates that this action be dismissed without prejudice.
Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir.
2002) (holding that an action must be dismissed without
prejudice when an inmate who is subject to 28 U.S.C. §
1915(g) does not pay the full “filing fee at the time
he initiates the suit”) (emphasis in
original); Vanderberg v. Donaldson, 259 F.3d 1321,
1324 (11th Cir. 2002) (holding that the filing fee must be
paid by an inmate subject to § 1915(g) at the time an
action is commenced). Therefore, it is recommended that this
action be dismissed without prejudice pursuant to 28 U.S.C.
OF RIGHT TO FILE OBJECTIONS
of this report and recommendation shall be served on all
parties in the manner provided by law. Any party who objects
to this recommendation or anything in it must, within
fourteen (14) days of the date of service of this document,
file specific written objections with the Clerk of this
Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
72(b); S.D. ALA. GenLR 72(c). The parties should note that
under Eleventh Circuit Rule 3-1, “[a] party failing to
object to a magistrate judge's findings or
recommendations contained in a report and recommendation in
accordance with the provisions of 28 U.S.C. § 636(b)(1)
waives the right to challenge on appeal the district
court's order based on unobjected-to factual and legal
conclusions if the party was informed of the time period for
objecting and the consequences on appeal for failing to
object. In the absence of a proper objection, however, the
court may review on appeal for plain error if necessary in
the interests of justice.” 11th Cir. R. 3-1.
In order to be specific, an objection must identify the
specific finding or recommendation to which objection is
made, state the basis for the objection, and specify the
place in the Magistrate Judge's report and recommendation
where the disputed determination is found. An objection that
merely incorporates by reference or refers to the briefing
before the Magistrate Judge is not specific.
 Plaintiff, a frequent litigant before
this Court, utilizes a variety of aliases. Indeed, in the
instant action, he refers to himself as “Honorable
Imperial Emperor Marcus O. Tate-El-Bey-Tey-Washitaw.”
(Doc. 1 at 1, 5). However, the Alabama Department of