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