United States District Court, M.D. Alabama, Northern Division
JAMES M. BROADHEAD, AIS #224802, Plaintiff,
OFFICER WIGGINS, et al., Defendants.
RECOMMENDATION OF THE MAGISTRATE JUDGE
CHARLES S. COODY UNITED STATES MAGISTRATE JUDGE
cause of action is before the court on a 42 U.S.C. §
1983 complaint filed by James M. Broadhead, a frequent
federal litigant who is presently incarcerated at the Bullock
Correctional Facility. In the instant complaint, Broadhead
alleges that sometime prior to filing this cause of action
officials at Bullock used excessive force against him. Doc. 1
at 2-4. Specifically, Broadhead alleges that while
he was in handcuffs the 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 . . . but felt like 1000% degrees[.]” Doc. 1
initiation of this case, Broadhead 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.” 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 at the time he filed the complaint
must pay the filing fee upon initiation of his case.
Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir.
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(e) as frivolous or malicious. The actions on which this
court relies in finding a § 1915(g) violation by
Broadhead are as follows: (1) Broadhead v. Dozier, et
al., Case 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 in excess of 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.”).
present complaint addresses a past use of force; therefore,
the court finds that Broadhead has failed to demonstrate that
he “is under imminent danger of serious physical
injury” which 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)).
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 the initiation of this case.
Dupree, 284 F.3d at 1236 (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.”)
(emphasis in original); 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 James Broadhead (Doc. 2) be DENIED.
case be dismissed without prejudice for Broadhead's
failure to pay the full filing fee upon the initiation of
before February 5, 2019, the plaintiff may
file objections to the Recommendation. The plaintiff must
specifically identify the factual findings and legal
conclusions in the Recommendation to which objection is made.