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McConico v. Wal-Mart Stores Inc.

United States District Court, M.D. Alabama, Northern Division

October 30, 2018

JAMES MCCONICO, JR., #117 395, Plaintiff,
v.
WAL-MART STORES, INC., et al., Defendants.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          WALLACE CAPEL, JR. CHIEF UNITED STATES MAGISTRATE JUDGE

         This case is before the court on a complaint filed by Plaintiff, an indigent state inmate incarcerated at the Bullock Correctional Facility in Union Springs, Alabama. Plaintiff has also filed a Motion for Leave to Proceed In Forma Pauperis (Doc. 2) pursuant to 28 U.S.C. § 1915, as well as a Motion for an Order Directing Service of Summons and Complaint Upon All Defendants (Doc. 5). Under 28 U.S.C. § 1915, a prisoner may not bring a civil action or proceed on appeal in forma pauperis if he “has, on 3 or more 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.”[1] 28 U.S.C. § 1915(g). Consequently, an inmate in violation of the “three strikes” provision of § 1915(g) who is not in “imminent danger” of suffering a serious physical injury must pay the filing fee upon initiation of his case. Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002).

         I. DISCUSSION

         Court records establish that Plaintiff, while incarcerated or detained, has on at least three occasions had civil actions and/or appeals dismissed as frivolous, as malicious, for failure to state a claim and/or for asserting claims against defendants immune from suit under 28 U.S.C. § 1915.[2] The cases on which this court relies in finding a § 1915(g) violation are: (1) McConico v. Treadway, et al., Civil Action No. 2:90-CV-1226-SCP (N.D. Ala. 1990) (complaint frivolous); (2) McConico, et al. v. Thigpen, et al., Civil Action No. 2:90-CV-2069-ELN (N.D. Ala. 1991) (complaint frivolous); (3) McConico v. White, et al., Civil Action No. 2:96-CV-1124-JHH (N.D. Ala. 1996) (complaint frivolous); (4) McConico v. State of Alabama, et al., Civil Action No. 2:95-CV-950-JFG (N.D. Ala. 1995) (complaint frivolous): and (5) McConico v. Mann, et al., Civil Action No. 2:96-CV-353-WHA (M.D. Ala. 1996) (complaint frivolous). This court concludes these summary dismissals place Plaintiff in violation of 28 U.S.C. § 1915(g).

         “General allegations that are not grounded in specific facts which indicate that serious physical injury is imminent are not sufficient to invoke the exception to § 1915(g).” Niebla v. Walton Correctional Inst., 2006 WL 2051307, *2 (N.D.Fla. July 20, 2006) (citing Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). “The 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, and vague allegations of harm and unspecific references to injury are insufficient.” Id. (citing Martin, supra, and White v. State of Colorado, 157 F.3d 1226, 1231 (10th Cir. 1998) (internal quotations omitted).

         The court has carefully reviewed the claims in the instant action. Plaintiff appears to be alleging that Defendants, a corporate retailer and executive officers of the retailer, have unjustly enriched themselves through means of false and misleading advertising that induced Plaintiff to purchase services offered by the retailer. Even construing all allegations in favor of Plaintiff, his claims do not entitle him to avoid the bar of § 1915(g) because they do not allege nor indicate that he was “under imminent danger of serious physical injury” when he filed this cause of action as required to meet the imminent danger exception to the application of 28 U.S.C. § 1915(g).). Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999) (holding that a prisoner who has filed three or more frivolous lawsuits or appeals and seeks to proceed in forma pauperis must present facts sufficient to demonstrate “imminent danger” to circumvent application of the “three strikes” provision of 28 U.S.C. § 1915(g)); Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002) (noting the imminent danger exception is available only “[w]hen a threat or prison condition is real and proximate, and when the potential consequence is ‘serious physical injury.'”); Abdul-Akbar 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.”).

         Based on the foregoing, the court concludes this case is due to be summarily dismissed without prejudice as Plaintiff failed to pay the requisite filing and administrative fees upon his initiation of this case. Dupree, 284 F.3d at 1236 (emphasis in original) (“[T]he proper procedure is for the district court to dismiss the complaint without prejudice when [an inmate is not entitled] to proceed in forma pauperis [due] to [violation of] the provisions of § 1915(g)” because the prisoner “must pay the filing fee at the time he initiates the suit.”); Vanderberg v. Donaldson, 259 F.3d 1321, 1324 (11th Cir. 2001) (same).

         II. CONCLUSION

         In light of the foregoing, it is the RECOMMENDATION of the Magistrate Judge that:

1. Plaintiff's motion for leave to proceed in forma pauperis (Doc. # 2) be DENIED;
2. Plaintiff's Motion for an Order Directing Service of Summons and Complaint Upon All Defendants (Doc. 5) be DENIED; and
3. This case be DISMISSED without prejudice for Plaintiff's failure to pay the filing and administrative fees upon his initiation of this case.

         It is further

         It is further ORDERED that the parties are DIRECTED to file any objections to the said Recommendation on or before November 13, 2018. Any objections filed must specifically identify the findings in the Magistrate Judge's Recommendation to which the party is objecting. Frivolous, conclusive, or general objections will not be considered by the District Court. The parties are ...


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