United States District Court, M.D. Alabama, Northern Division
JAMES M. BROADHEAD, #224 802, Plaintiff,
CORRECTIONAL RN S. CALDWELL, et al., Defendants.
RECOMMENDATION OF THE MAGISTRATE JUDGE
WALLACE CAPEL, JR. CHIEF, UNITED STATES MAGISTRATE JUDGE.
case is before the court on a 42 U.S.C. § 1983 complaint
filed by James M. Broadhead, a frequent federal litigant, who
is incarcerated at the Bullock Correctional Facility in Union
Springs, Alabama. In the complaint, Broadhead alleges that
sometime prior to filing this cause of action officials at
Bullock used excessive force against him. Doc. 1 at 3-4.
Specifically, Broadhead alleges that while he was in
handcuffs Defendants struck him with a “knight stick,
” sprayed him with mace, and stomped/kicked him then
“took [him] outside in the hot sun [where] it was like
95 degrees[.]” Doc. 1 at 3-4.
initiating this case, Broadhead did not pay the $350.00
filing fee and attendant $50 administrative fee nor did he
file an application for leave to proceed in forma
pauperis. In cases with these deficiencies, the usual
practice of this court is to enter an order advising the
plaintiff that he must pay the full filing fee and
concomitant administrative fee or submit an application to
proceed in forma pauperis. 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.” 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).
court records establish that Broadhead, while incarcerated or
detained, has on at least four occasions had civil actions
dismissed pursuant to the provisions of 28 U.S.C. § 1915
as frivolous or malicious. The actions on which this court
relies in finding a § 1915(g) violation by the plaintiff
are: (1) Broadhead v. Dozier, et al., No.
2:11-CV-489-MEF-TFM (M.D. Ala. 2012) (complaint malicious);
(2) Broadhead v. O'Brian, et al., No.
4:10-CV-475-JHH-RRA (N.D. Ala. 2010) (complaint frivolous);
(3) Broadhead v. Hopkins, et al., No.
4:10-CV-439-LSC-RRA (N.D. Ala. 2010) (complaint frivolous);
and (4) Broadhead v. Kirrire, et al., No.
4:10-CV-53-VEH-RRA (N.D. Ala. 2010) (complaint frivolous).
Broadhead has three strikes, he may not proceed in forma
pauperis in this case unless he demonstrates that he is
“under imminent danger of serious physical
injury.” 28 U.S.C. § 1915(g).
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)) (emphasis added); May v. Myers, 2014 WL
3428930, at *2 (S.D. Ala. July 15, 2014) (holding that, to
meet the exception to application of § 1915(g)'s
three strikes bar, the facts contained in the complaint must
show that the plaintiff “was under ‘imminent
danger of serious physical injury' at the time he filed
this action.”); 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.”).
review of the complaint, the court finds Broadhead has failed
to demonstrate he “is under imminent danger of serious
physical injury” as is required to meet the exception
allowing circumvention of the directives contained in 28
U.S.C. § 1915(g) because his allegations concern only
past alleged incidents of excessive force. 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). Consequently, even if Broadhead sought in forma
pauperis status in the instant action, he is not
entitled to such status due to his violation of the
“three strikes” provision of 28 U.S.C. §
on the foregoing analysis, the court concludes that this case
is due to be summarily dismissed without prejudice as
Broadhead failed to pay the requisite filing and
administrative fees upon his 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 [and now applicable administrative fee] at the
time he initiates the suit.”)
(emphasis in original); Vanderberg v. Donaldson, 259
F.3d 1321, 1324 (11th Cir. 2001) (same).
it is the RECOMMENDATION of the Magistrate Judge this case be
DISMISSED without prejudice for Plaintiff's failure to
pay the filing and administrative fees upon initiation of
that on or before December 20, 2018,
Plaintiff may file an objection to the Recommendation. Any
objection filed must specifically identify the factual
findings and legal conclusions in the Magistrate Judge's
Recommendation to which Plaintiff objects. Frivolous,
conclusive or general objections will not be considered by