Broadhead v. Holcey

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          WALLACE CAPEL, JR. UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         This case is before the court on a 42 U.S.C. § 1983 complaint filed on December 3, 2018, 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 prior to filing this cause of action officials at Bullock used excessive force against him.^[1] Doc. 1 at 2-3. Specifically, Broadhead alleges that while he was in handcuffs Defendants struck him with a night stick, sprayed him with mace, and stomped/kicked him then “took [him] outside in the hot sun [where] it was like 95 degrees but felt like 1000% degrees[.]”^[2] Doc. 1 at 3.

         II. DISCUSSION

         Upon 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.”^[3] 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).

         Federal 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).

         As 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). 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)) (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.”).

         Upon 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). 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. § 1915(g).

         Based 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).

         III. CONCLUSION

         Accordingly, 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 this case.

         It is further

         ORDERED that on or before January 28, 2019, 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 the District Court. This Recommendation is not a final order and, therefore, it is not appealable.

         Failure to file a written objection to the proposed findings and recommendations in the Magistrate Judge's report shall bar a party from a de novo determination by the District Court of factual findings and legal issues covered in the report and shall “waive the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions” except upon grounds of plain error if necessary in the interests of justice. 11th Cir. R. 3-1; see Resolution ...