United States District Court, M.D. Alabama, Northern Division
JAMES M. BROADHEAD, #224 802, Plaintiff,
OFFICER C/O M. HOLCEY, et al., Defendants.
RECOMMENDATION OF THE MAGISTRATE JUDGE
CHARLES S. COODY, UNITED STATES MAGISTRATE JUDGE
case is before the court on a 42 U.S.C. § 1983 complaint
filed on January 16, 2019, 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
Doc. 1 at 2-4. 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 but felt like 1000%
degrees[.]” Doc. 1 at 3.
initiating this case, Broadhead filed a motion for leave to
proceed in forma pauperis. 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 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).
has more than three strikes and, therefore, 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)).
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:
1. Plaintiff's motion for leave to proceed in forma
pauperis (Doc. 2) be DENIED;
2. This case be DISMISSED without prejudice for
Plaintiff's failure to pay the filing fee upon initiation
of this case.
that on or before February 6, 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