United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
WALLACE CAPEL, JR. CHIEF UNITED STATES MAGISTRATE JUDGE
I.
INTRODUCTION
This
case is before the court on a 42 U.S.C. § 1983 complaint
filed by Aljay Lockett, Jr., a state inmate and frequent
federal litigant. In the instant complaint, Lockett
challenges actions taken by Judge Charles Price, a former
circuit judge for Montgomery County, Alabama, during
resentencing proceedings conducted in January of 2000.
Lockett alleges the sentence imposed by Judge Price resulted
in his false imprisonment from the time of the challenged
resentencing until November of 2012 when the trial court
again resentenced Lockett. Doc. 1 at 2-3. Lockett also
alleges Judge Price deprived him of equal protection because
“he treated others different with the same situation.
Doc. 1 at 3.
II.
DISCUSSION
Upon
initiation of this case, Lockett filed a motion for leave to
proceed in forma pauperis under 28 U.S.C. §
1915(a). Doc. 2. However, 28 U.S.C. § 1915(g) directs
that a prisoner is not allowed to 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]
The
records of this court and those of the United States District
Court for the Northern District of Alabama establish that
Lockett, while incarcerated or detained, has on at least five
occasions had civil actions dismissed pursuant to the
provisions of 28 U.S.C. § 1915 as frivolous. The cases
on which this court relies in finding a § 1915(g)
violation by Lockett include: (1) Lockett v. Butler, et
al., Civil Action No. 2:92-CV-1114-REV (M.D. Ala. 1992);
(2) Lockett v. Grimes, et al., Civil Action No.
2:99-CV-618-WHA (M.D. Ala. 2000); (3) Lockett v. Woodard,
et al., Civil Action No. 2:00-CV-2034-JHH (N.D. Ala.
2000); (4) Lockett v. Hooper, et al., Civil Action
No. 2:00-1508-WHA (M.D. Ala. 2001); and (5) Lockett v.
Riddle, et al., Civil Action No. 2:01-CV-187-MHT (M.D.
Ala. 2001).
As
Lockett has three strikes, he may not proceed in forma
pauperis in this case unless he was “under
imminent danger of serious physical injury” at the time
he filed the complaint. 28 U.S.C. § 1915(g). In
determining whether a plaintiff satisfies this burden,
“the issue is whether his complaint, as a whole,
alleges imminent danger of serious physical injury.”
Brown v. Johnson, 387 F.3d 1344, 1350 (11th Cir.
2004). “A plaintiff must provide the court with
specific allegations of present imminent danger indicating
that a serious physical injury will result if his claims are
not addressed.” Abdullah v. Migoya, 955
F.Supp.2d 1300, 1307 (S.D. Fla. 2013).
In
addition, numerous district courts, including the United
States District Court for the Southern District of Alabama
and the United States District Court for the Northern
District of Florida, have adopted the Second Circuit's
determination that “an adequate nexus must exist
between the claims plaintiff seeks to pursue and the imminent
danger he alleges. Pettus v. Morgenthau, 554 F.3d
293, 296, (2d Cir. 2009) (finding that the exception to
§ 1915(g) was not satisfied because the nexus was too
attenuated between the defendants associated with
plaintiff's conviction and the alleged imminent danger of
serious physical injury arising from his incarceration that
was based on the denial of medication and being
‘surrounded by hostile, aggressive, violent inmates who
beat, rob, assault, extort, and sexually abuse
him.'” May v. Barber, 2016 WL 1735556, at
*2 (S.D. Ala. Mar. 24, 2016); Cole v. Ellis, 2015 WL
6407205, at *1 (N.D. Fla. Sept. 3, 2015), Report and
Recommendation adopted as opinion of the court, 2015 WL
6394506 (N.D. Fla. Oct. 22, 2015) (holding that in addition
to showing an imminent danger of serious physical injury
“there must be an adequate nexus be tween the imminent
danger alleged and the legal claims asserted in the
prisoner's complaint.”); Ball v. Hummel,
577 Fed.Appx. 96, 96 n.1 (3rd Cir. 2014) (recognizing that to
satisfy the imminent danger requirement of § 1915(g) a
prisoner must demonstrate an adequate nexus between the
claims he seeks to pursue and the imminent danger he alleges)
(citing Pettus, 554 F.3d at 296); see also Stine
v. Fed. Bureau of Prisons Designation and Sentence
Computation Unit, 571 Fed.Appx. 353, 354 (5th Cir. 2014)
(finding that the plaintiff failed to establish imminent
danger arising from claims of inadequate protection by
federal prison officials in Colorado and further noting he
“also failed to plausibly plead any connection between
the alleged imminent danger in Colorado and his [pending]
claims against BOP defendants in Texas[.]”);
cf. Barber v. Krepp, 2017 WL 694489, at *3
(11th Cir. Feb. 22, 2017) (acknowledging “the Second
Circuit has concluded that, in order to fall within the
‘imminent danger' exception to § 1915(g), the
prisoner must demonstrate a ‘nexus' between the
physical injury he fears and the claims in his complaint,
Pettus, [554 F.3d at 297, ]” but declining to
decide “whether § 1915(g)'s ‘imminent
danger' exception requires proof of such a nexus”
because, even if it does, a nexus existed between the
assertion of imminent harm and the claim presented in the
complaint).
In his
complaint, Lockett presents claims attacking the
constitutionality of actions taken by a state judge in a
sentencing proceeding held in January of 2000. The court has
thoroughly reviewed Lockett's claims for relief and finds
that these claims do not allege nor in any way indicate that
Lockett was “under imminent danger of serious physical
injury” at the time of filing this cause of action as
is required to meet the exception to 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 and seeks to proceed in
forma pauperis must allege a present “imminent
danger of serious physical injury” to circumvent
application of the “three strikes” bar contained
in 28 U.S.C. § 1915(g).); Lewis v. Sullivan,
279 F.3d 526, 531 (7th Cir. 2002) (holding that imminent
danger exception to § 1915(g)'s three strikes rule
is construed narrowly and available only “for genuine
emergencies, ” where “time is pressing” and
“a threat . . . is real and proximate.”);
Abdul-Akbar v. McKelvie, 239 F.3d 307, 315 (3rd 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.”).
Finally, if Lockett is required to show a nexus between the
claims he now seeks to pursue and any potential danger
attendant to the current conditions of his incarceration, he
has failed to do so as the challenged actions of Judge Price
“are much too attenuated from” such conditions to
show imminent danger. Pettus, 554 F.3d at 296.
Consequently, under the circumstances of this case, Lockett
cannot avoid the “three strikes” bar contained in
28 U.S.C. § 1915(g).[2]
In
light of the foregoing, the court concludes that
Lockett's motion for leave to proceed in forma
pauperis is due to be denied and this case summarily
dismissed without prejudice as Lockett failed to pay the
requisite filing fee upon initiation of this case. Dupree
v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002)
(emphasis in original) (“[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 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).
III.
CONCLUSION
Accordingly,
it is the RECOMMENDATION of the Magistrate Judge that:
1. The
motion for leave to proceed in forma pauperis filed
by Aljay Lockett, Jr. (Doc. 2) be DENIED.
2. This
case be dismissed without prejudice for Lockett's failure
to pay the full filing ...