United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
STEPHEN M. DOYLE UNITED STATES MAGISTRATE JUDGE
case is before the court on a 42 U.S.C. § 1983 complaint
filed by Arthur Brennan Malloy, a state inmate and frequent
federal litigant. In the instant complaint, Malloy complains
that the Alabama Board of Pardons and Paroles and its members
have failed to act on an application for a pardon based on
his alleged innocence submitted in November of 2008. Doc. 1
initiation of this case, Malloy 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
records of this court, the Eleventh Circuit Court of Appeals
and the United States District Court for the District of
Columbia establish that Malloy, while incarcerated or
detained, has on at least five occasions had civil actions
and an appeal dismissed as frivolous, malicious or for
failure to state a claim on which relief may be granted. The
cases on which this court relies in finding a § 1915(g)
violation by Malloy are: (1) Malloy v. County of
Montgomery, Alabama, et al., No. 2:18-CV-665-WKW (M.D.
Ala. Sept. 24, 2018) (malicious); (2) Malloy v. County of
Montgomery, Alabama, et al., No. 2:15-CV-898-MHT (M.D.
Ala. 2016) (failure to state a claim); (3) Malloy v.
County of Montgomery, Alabama, et al., Appeal No.
16-11398-A (11th Cir. 2016) (frivolous); (4) Malloy v.
Hobbs, et al., No. 1:90-CV-1497-SSH (D.C. 1990) (failure
to state a claim); and (5) Malloy v. Young, et al.,
No. 2:98-CV-981-MHT (M.D. Ala. 1998) (failure to state a
Malloy 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).
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 § 1915(g) allows a
three-strikes litigant to proceed IFP only when there exists
an adequate nexus between the claims plaintiff seeks to
pursue and the imminent danger he alleges.” Pettus
v. Morgenthau, 554 F.3d 293, 298 (2d Cir. 2009); May
v. Barber, 2016 WL 1735556, at *2 (S.D. Ala. Mar. 24,
2016) (finding that Plaintiff could not avail himself of the
imminent danger exception to the § 1915(g) bar because
he had more than three cases which qualified as strikes under
§ 1915(g) and failed to show both “that he face[d]
an ‘imminent danger of serious physical injury' at
the time of filing his complaint . . . [and that] an adequate
nexus . . . exist[ed] between the claims plaintiff [sought]
to pursue and the imminent danger he allege[d].”)
(citing Pettus, 554 F.3d at 296); 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) (finding that, in
addition to showing an imminent danger of serious physical
injury, an inmate must also demonstrate “an adequate
nexus between the imminent danger alleged and the legal
claims asserted in the prisoner's complaint” to
meet the exception to application of § 1915(g));
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) (holding that Plaintiff could not
proceed without payment of the filing fee because he 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[.]”); Barber v. Krepp, 680 Fed.Appx.
819, 821 (11th Cir. 2017) (acknowledging that in
Pettus “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” 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, Malloy presents claims attacking the
constitutionality of inaction by the parole board and its
members in addressing his request for a pardon submitted in
November of 2008. This court has thoroughly reviewed
Malloy's claims for relief and finds that these claims do
not allege nor in any way indicate that Malloy 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 Malloy 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 lack of action is
“much too attenuated from” such conditions to
show imminent danger. Pettus, 554 F.3d at 296.
Consequently, under the circumstances of this case, Malloy
cannot avoid the “three strikes” bar contained in
28 U.S.C. § 1915(g).
light of the foregoing, the court concludes that Malloy's
motion for leave to proceed in forma pauperis is due
to be denied and this case summarily dismissed without
prejudice as Malloy 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).
it is the RECOMMENDATION of the Magistrate Judge that:
motion for leave to proceed in forma pauperis filed
by Arthur Brennan Malloy (Doc. 2) be DENIED.
case be dismissed without prejudice for Malloy's failure
to pay the full filing ...