United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
BRADLEY MURRAY, UNITED STATES MAGISTRATE JUDGE.
Richard Daron Kennedy, an Alabama prison inmate proceeding
pro se, filed a complaint under 42 U.S.C.
§§ 1983, 1985(3), and 1986 and a motion to proceed
without prepayment of fees. (Docs. 1, 2). Upon review of the
complaint and Kennedy's prior litigation history, it is
recommended that this action be dismissed without prejudice
pursuant to 28 U.S.C. § 1915(g), because Kennedy is
barred from proceeding in forma pauperis and did not
pay the filing fee at the time he filed this
Section 1915(g) and Kennedy'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).
Kennedy sought leave to proceed in forma pauperis,
the Court screened his complaint pursuant to 28 U.S.C. §
1915(e)(2)(B). In screening the complaint, 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 ground that they were frivolous,
malicious, or failed to state a claim upon which relief may
be granted. From those dockets, the Court discovered that
Kennedy has had at least three actions dismissed for one of
the foregoing reasons, namely, Kennedy v. Lockett,
CA No. 08-00169-CG-M (S.D. Ala. 2008) (frivolous), appeal
dismissed as frivolous (11th Cir. 2009); Kennedy v.
Reese, CA No. 09-00275-TMH-CSC (M.D. Ala. 2009)
(dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B)(i-iii)), appeal dismissed as frivolous
(11th Cir. 2009); Kennedy v. Union Planters, CA No.
00-00353-CB-M (S.D. Ala. 2000) (frivolous); and Kennedy
v. Albach, CA No. 00-00470-AH-M (S.D. Ala. 2001)
(frivolous). In addition, in Kennedy v.
Murphree, CA No. 11-00252-KD-B (S.D. Ala. 2011),
Kennedy's action was dismissed pursuant to 28 U.S.C.
Section 1915(g)'s Exception.
in order to avoid the dismissal of the present action
pursuant to § 1915(g), Kennedy 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 (2001).
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.).
Kennedy has not done this.
complaint and memorandum of law (Docs. 1, 2), Kennedy sues
Detective Albach, Sergeant Crosby Taylor, Assistant District
Attorney Jobeth Murphree, and District Attorney Rich, (Doc. 1
at 5-7), and states that his claims against them arose in
1999. (Doc. 1 at 4). Kennedy's claims against Defendants
arise from the death of John D. Powell, Jr. (“Little
Man”) in May, 1996. (Doc. 2 at 1). Kennedy alleges that
Michelle Vanese Orso confessed to injuring her son, Little
Man, but Defendants, pursuant to a conspiracy, withheld her
confession from the grand jury that indicted him.
(Id. & at 10, Exhibit A, Confession; Doc. 1 at
7). He complains Defendants used false evidence, fabricated
evidence, and fraudulently withheld evidence to obtain the
indictment against him. (Id. at 1). Kennedy
indicates that he was convicted of murder and child abuse,
for which he is serving sentences of life imprisonment and
ten years' imprisonment, respectively. (Doc. 1 at 6).
requests $10 million from each Defendant, (Doc. 1 at 8, Doc.
2 at 9), and “for a jury to decide the newly discovered
evidence that was concealed before, prior to the grand jury
indictment.” (Doc. 1 at 8).
time of the complaint's filing, § 1915(g) requires
that Kennedy have been in imminent danger of serious physical
injury. 28 U.S.C. § 1915(g). Because Kennedy's
complaint, which was received by this Court on February 15,
2018, challenged an event that occurred in 1999, see
Doc. 1 at 4, or before, the Court finds that he was not in
imminent danger of serious physical injury when he filed the
present action. Moreover, his allegations do not describe a
serious physical injury to him, much less an injury that is
imminent. Thus, the Court concludes ...