United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE.
Robert Taylor, an Alabama prison inmate proceeding pro
se, filed a complaint under 42 U.S.C. § 1983
without paying the $400.00 filing/administrative fee or
filing a motion to proceed without prepayment of
fees. (Doc. 1). Upon review of the complaint and
Taylor's prior 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, 127 S.Ct. 910, 921, 166
L.Ed.2d 798 (2007).
Taylor is a prisoner, the undersigned is required to process
his § 1983 action. S.D. Ala. GenLR 72(a)(2)(R). In
assessing the next step to take in the processing of this
action, the undersigned 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.
Hale, CA 16-0449-WS-M (S.D. Ala. 2016) (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
Taylor had an action dismissed pursuant to 28 U.S.C. §
1915(g), Taylor v. Wells, CA 17-0350-CG-MU (S.D.
Ala. May 7, 2018), with the Report and Recommendation in that
action being entered on April 13, 2018, and Taylor filing the
present action on April 27, 2018. (Doc. 1). Pre-dating the
§ 1915(g) dismissal in Taylor v. Wells, supra,
is another § 1915(g) dismissal in Taylor v.
Graddick, CA 17-0253-CG-M (S.D. Ala. 2017).
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 (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.).
Taylor has not done this.
complaint, Taylor sued Jason Weidman, an employee of a BP Gas
Station in Mobile, Alabama, for an incident that occurred on
December 5, 2013. (Doc. 1 at 5). Taylor then filed the
instant action on April 27, 2018. (Doc. 1).
time of the complaint's filing, § 1915(g) requires
that Taylor be in imminent danger of serious physical injury.
28 U.S.C. § 1915(g). With the Taylor filing this action
on April 27, 2018, challenging an event that occurred on
December 5, 2013, 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, much less an injury that is imminent. Thus,
the Court ...