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Muhammad v. Rance Reehl Coldwell Bank Real Estate

United States District Court, S.D. Alabama, Southern Division

January 25, 2019

DRELIJAH J. MUHAMMAD, a/k/a MARCUS ORLANDO TATE, a/k/a MARCUS ORLANDO TAITE, a/k/a DR. ELIJAH JOSHUA MUHAMMAD, II, # 180664, [1] Plaintiff,
v.
RANCE REEHL COLDWELL BANK REAL ESTATE, et al., Defendants.

          REPORT AND RECOMMENDATION

          SONJA F. BIVINS UNITED STATES MAGISTRATE JUDGE

         Plaintiff Drelijah J. Muhammad, who is proceeding pro se and is seeking leave to proceed in forma pauperis, filed the instant action against Rance Reehl Coldwell Bank Real Estate and others. (Docs. 1, 2). The action has been referred to the undersigned for appropriate action pursuant to United States District Judge Moorer's Order dated January 10, 2019 (Doc. 6), 28 U.S.C. § 636(b)(1)(B), and S.D. Ala. GenLR 72(a)(2)(R). Upon review of the complaint as amended and Plaintiff's prior litigation history, it is recommended that this action be dismissed without prejudice pursuant to 28 U.S.C. § 1915(g), because Plaintiff is barred from proceeding in forma pauperis and he did not pay the filing fee at the time he filed this action.

         I. 28 U.S.C. § 1915(g) and Plaintiff's Litigation History.

         Section 1915(g) provides:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section [28 U.S.C. § 1915] if the prisoner has, on 3 or more prior 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.

         The purpose of this section is to curb abusive prisoner litigation by requiring a prisoner who has had three actions or appeals dismissed as meritless to pay the full filing fee when his next action is filed. Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002). “The only exception to section 1915(g) is if the frequent filer prisoner is ‘under imminent danger of serious physical injury.'” Rivera v. Allin, 144 F.3d 719, 723 (11th Cir. 1998), abrogated on other grounds by Jones v. Bock, 549 U.S. 199, 215-16 (2007).

         Because Plaintiff sought leave to proceed in forma pauperis, the Court reviewed the records of the United States District Courts for the Southern, Middle, and Northern Districts of Alabama to determine whether he has three or more actions or appeals that were dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief may be granted. From those dockets, the Court discovered that Plaintiff has had at least three actions dismissed for one of the foregoing reasons, namely, Marcus Orlando Taite v. Haley, et al., CA 02-0034-MHT-CSC (M.D. Ala. Apr. 18, 2002); Marcus O. Tate, et al. v. Keahey, et al., CA 02-00734-BH-S (S.D. Ala. Feb. 11, 2003); Marcus Tate v. Lawson, CA 06-01779-RBP (N.D. Ala. Nov. 17, 2006); and Tate v. Nationalist Gov. Sovereign Inhabitants, CA 18-00077-KD-B (S.D. Ala. June 19, 2018). In addition, Plaintiff has had other actions dismissed pursuant to 28 U.S.C. § 1915(g), for example, Tate v. Bass, et al., CA 07-00305-KD-C (S.D. Ala. June 22, 2007); Tate v. Bass, CA 07-1093-MHT (M.D. Ala. Jan. 15, 2008); Tate v. Marshall, et al., CA 09-0222-TMH-CSC (M.D. Ala. Apr. 23, 2009); and Tate v. Hayward, et al., CA 10-1710 KDE-DEK (E.D. La. June 15, 2010). Thus, the present action is due to be dismissed unless Plaintiff can satisfy the exception to § 1915.

         II. Section 1915(g)'s Exception.

         The exception to § 1915(g) requires that Plaintiff show that at the time of the complaint's filing, he was “under imminent danger of serious physical injury.” See Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999) (finding that the imminent danger of serious physical injury must be faced at the time the complaint is filed, not at a prior time); Adbul-Akbar v. McKelvie, 239 F.3d 307, 315 (3d 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.”), cert. denied, 533 U.S. 953 (2001).

         To meet § 1915(g)'s exception, the “complaint, as a whole, [must] allege[] imminent danger of serious physical injury.” Brown v. Johnson, 387 F.3d 1344, 1350 (11th Cir. 2004). To make this showing, a plaintiff “must allege and provide specific fact allegations of ongoing serious physical injury, or a pattern of misconduct evidencing the likelihood of imminent serious physical injury . . . .” Ball v. Allen, 2007 U.S. Dist. LEXIS 9706, at *4, 2007 WL 484547, at *1 (S.D. Ala. Feb. 8, 2007). Plaintiff has not done this.

         In Plaintiff's § 1983 complaint, as amended (Docs. 1, 2, 5), he directs his disjointed allegations against two businesses, Rance Reehl Coldwell Bank Real Estate and the Insurance Corporation of Rance Reehl. He asserts that specific tracts of land in Daphne and Fairhope, Alabama, are his “homes, properties, [and] mineral rights” because they are “birthrights inhe[rit]ance heir property” according to the Covington County Probate Court records. (Doc. 2 at 3-4). Defendant Rance Reehl Coldwell Bank Real Estate is identified as “the agent that [sold] trust property from 28, 000 B.C., 1400 A.D. and 1408 A.D.” and is alleged to be responsible for the violations of Plaintiff's constitutional rights. (Doc. 5 at 2). However, the complaint and amendments are wholly devoid of allegations of a physical injury connected to Plaintiff; therefore, they fail to meet § 1915(g)'s “imminent danger of serious physical injury” exception.

         III. Conclusion.

         Because Plaintiff cannot avail himself of § 1915(g)'s exception and did not pay the $400.00 filing/administrative fee[2]at the time he filed this action, Plaintiff's action is due to be dismissed without prejudice, and it is so recommended. Dupree, 284 F.3d at 1236 (holding that an action must be dismissed without prejudice when an inmate who is subject to 28 U.S.C. § 1915(g) does not pay the full filing fee at the time he initiates the action); Vanderberg v. Donaldson, 259 F.3d 1321, 1324 (11th Cir. 2001) (same), cert. denied, 535 U.S. 976 (2002).

         NOTICE OF RIGHT ...


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