United States District Court, S.D. Alabama, Southern Division
F. MOORER UNITED STATES DISTRICT JUDGE
August 5, 2018, the magistrate judge entered a report and
recommendation which recommends this action be dismissed
without prejudice pursuant to the provision of 28 U.S.C.
§ 1915(g). See Doc. 6. Plaintiff filed
objections on September 7, 2018. See Doc. 9. After
due and proper consideration of all portions of this file
deemed relevant to the issue raised, and a de novo
determination of those portions of the Recommendation to
which objection is made, the Report and Recommendation of the
Magistrate Judge made under 28 U.S.C. § 636(b)(1)(B) is
ADOPTED with the added language below.
addition to the analysis articulated by the Magistrate Judge,
the Court also notes that Plaintiff attempted to amend his
complaint wherein he makes allegations regarding the danger
of the prison where he is incarcerated. See Doc. 4.
Plaintiff further reiterates this point in his objections to
the report and recommendation. See Doc. 9. However,
his attempts to show “imminent danger” to
circumvent the “three strikes” provision of 28
U.S.C. § 1915(g) fail.
as noted by the Magistrate Judge, the allegations fail to
demonstrate that Heidelberg was in imminent danger at the
time he filed this cause of action. Medberry v.
Butler, 185 F.3d 1189, 1193 (11th Cir. 1999) (inmate
must show “imminent danger” at time of filing the
complaint to circumvent application of the “three
strikes” provision of 28 U.S.C. § 1915(g).);
see also Martin v. Shelton, 319 F.3d 1048, 1050 (8th
Cir. 2003); Abdul-Akbar v. McKelvie, 239 F.3d 307,
315 (3d Cir. 2001) (“By using the term
‘imminent,' Congress indicated that it wanted to .
. . prevent impending harms, not those harms that had already
occurred.”). Plaintiff attempts to remedy his original
failure in his motion to amend and his objections. However,
those will not satisfy the requirement that the imminent
danger be present when the original complaint was filed.
Plaintiff filed his complaint on or about June 8, 2018, but
as noted by the Magistrate Judge, the events on which he
bases his claims occurred prior to March 6, 2018.
See Doc. 6 at p. 5.
the Court also notes that the allegations of imminent danger
relate solely to the conditions of confinement and not the
actual claims for which he seeks relief. Plaintiff asserts
causes of action that challenge the constitutionality of his
arrest and subsequent revocation of parole. This Court agrees
with other courts in their determination that an adequate
nexus must exist between the claims made the basis of the
complaint and the alleged imminent danger. See, e.g.,
Pettus v. Morenthau, 554 F.3d 293, 297 (2d Cir. 2009)
(“there must be a nexus between the imminent danger a
three-strikes prisoner alleges to obtain IFP status and the
legal claims asserted in his complaint.”); Alston
v. F.B.I., 747 F.Supp.2d 28, 31 (D.D.C. 2010) (“To
qualify under [the imminent danger exception], the prisoner
must show that the action is connected to the imminent
danger.”); Frazier v. Reynolds, Civ. Act. No.
2:15-cv-381-MHT, 2015 U.S. Dist. LEXIS 93884 (M.D. Ala. Jul.
1, 2015) (holding same and citing Pettus and
Alston). Even the conditions he complains about with
regard to lack of medical care and being assaulted by another
inmate all occurred prior to his transfer to the Alabama
Department of Corrections. See Doc. 1 at
¶¶ 21-24. Finally, his generalized allegations of
living in fear at his current facility discussed in his
proposed amended complaint do not ultimately relate to his
claims, but rather relate to his status as a prisoner.
these circumstances, the Eleventh Circuit is clear.
“[T]he proper procedure is for the district court to
dismiss the complaint without prejudice when it denies the
prisoner leave to proceed in forma pauperis pursuant
to the three strikes provision of § 1915(g). The
prisoner cannot simply pay the filing fee after being denied
in forma pauperis status. He must pay the filing fee at the
time he initiates the suit.” Dupree v.
Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002).
based on the reasons stated by the Magistrate Judge and the
added discussion above, the Plaintiff's motion to amend
(Doc. 4) is DENIED, Plaintiff's
objections (Doc. 9) are OVERRULED, and the
Report and Recommendation (Doc. 6) is
action is DISMISSED without prejudice
pursuant to the provisions of 28 U.S.C. § 1915(g)
because Plaintiff is barred from proceeding in forma
pauperis and he did not pay the requisite filing fee.