United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE.
§ 1983 action, filed by an Alabama prison inmate
proceeding pro se and seeking leave to proceed
in forma pauperis, 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. Upon review of the
complaint as amended and Heidelberg's prior litigation
history, it is recommended that this action be dismissed
without prejudice pursuant to 28 U.S.C. § 1915(g),
because Heidelberg is barred from proceeding in forma
pauperis and he did not pay the filing fee at the time
he filed this action.
Section 1915(g) and Heidelberg'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.
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, 127 S.Ct. 910, 921, 166
L.Ed.2d 798 (2007).
Heidelberg sought leave to proceed in forma
pauperis, the Court reviewed the records of the United
States District Courts 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 Heidelberg has had three actions
dismissed for one of the foregoing reasons, namely,
Heidelberg v. Parker, CA 99-0605-MHT-CSC (M.D. Ala.
1999); Heidelberg v. Haley, CA 99-1574-UWC-HGD (N.D.
Ala. 2001); and Heidelberg v. City of Mobile Police
Dept., CA 00-0077-BH-D (S.D. Ala. 2001). Moreover, the
Court notes that Heidelberg previously had two actions
dismissed pursuant to 28 U.S.C. § 1915(g),
Heidelberg v. City of Mobile Police Dept., CA
11-0256-CG-N (S.D. Ala. 2001), and Heidelberg v.
Bentley, CA 12-0300-WS-B (S.D. Ala. 2012). Thus, the
present action is due to be dismissed unless Heidelberg can
satisfy the exception to § 1915.
Section 1915(g)'s Exception.
exception to § 1915(g) requires that at the time of the
complaint's filing, Heidelberg 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.) (“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.).
Heidelberg has not done this.
complaint (Doc. 1), Heidelberg names as defendants, John Doe
(the arresting officer), Officer Michael Ellzey, Officer Roy
L. Adams, Chief of Police Lawrence Battiste, and City of
Mobile Police Department. (Id. at 4, 15-17).
Heidelberg alleges that on February 9, 2018, he was falsely
arrested by Defendants Ellzey and John Doe. (Id. at
4, 9). And Defendant Adams is also alleged to have unlawfully
arrested him and caused him to be falsely imprisoned.
(Id. at 9). Defendants City of Mobile Police
Department and Battiste are charged with failing to
adequately train and supervise their subordinates to deal
with persons with whom they will come into contact.
(Id. at 8).
incident that gives rise to these claims occurred on February
8, 2018, when Heidelberg's brother, Timothy Heidelberg,
came into their mother's house where Heidelberg was
living and taking care of their elderly mother. (Id.
at 10). The brothers quarreled which resulted in Timothy
receiving a “small skin pop” to his back from his
pocketknife. (Id.). Heidelberg left in a car
“for peace sake for his ill mother['s]”
benefit. (Id.). He was stopped by Defendant John Doe
as a result of his brother manipulating the police.
(Id. at 11). He told Defendant John Doe that the
City of Mobile Municipal Court had ordered his brother not to
have contact with him and not to come on the property.
(Id.). When Heidelberg arrived at the station,
Defendant Ellzey signed a complaint for an arrest warrant for
second-degree assault against him for stabbing his brother.
(Id. at 12). Defendant Adams is also alleged to have
signed the complaint. (Id. at 16). But before
Heidelberg received his preliminary hearing on March 5, 2018,
his parole was revoked on February 22, 2018. (Id. at
12). In addition to his complaints about the criminal and
parole proceedings against him, Heidelberg complains of the
lack of medical care and of being assaulted while at the
Mobile County Metro Jail before he was transferred to the
custody of the Alabama Department of Corrections
(“ADOC”), but he did not connect a named
Defendant to these allegations. (Id. at 13-14).
Heidelberg's amended complaint (Doc. 4), he adds a cause
of action for malicious prosecution. The basis for this claim
is the Mobile County District Court's dismissal of the
criminal charges against him on March 5, 2018, on his motion
to dismiss. (Id. at 2, 7).
result of these actions, Heidelberg is now incarcerated with
ADOC. (Doc. 1 at 13). He claims that his damages are being
unable, as the legal guardian, to provide daily care for his
elderly mother and being housed under unpleasant conditions
at ADOC, which he lists. (Doc. 4 at 3-4). Additionally, in