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Kennedy v. Albach

United States District Court, S.D. Alabama, Southern Division

July 26, 2018

RICHARD DARON KENNEDY, #196984, Plaintiff,
v.
ROBERT ALBACH, et al., Defendants.

          REPORT AND RECOMMENDATION

          P. BRADLEY MURRAY, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff 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.[1] (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 action.[2]

         I. Section 1915(g) and Kennedy's Litigation History.

         Section 1915(g) provides:

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).

         The 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).

         Because 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).[3] 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. § 1915(g).

         II. Section 1915(g)'s Exception.

         Therefore, 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).

         To 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.

         In the 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.[4] (Doc. 1 at 6).

         Kennedy 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).

         At the 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 ...


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