United States District Court, M.D. Alabama, Northern Division
JAMES M. BROADHEAD, AIS #224802, Plaintiff,
v.
SGT. DANIEL GAY, et al., Defendants.
RECOMMENDATION OF THE MAGISTRATE JUDGE
CHARLES S. COODY, UNITED STATES MAGISTRATE JUDGE.
I.
INTRODUCTION
This
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 3-5.[1] 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
at 4.[2]
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(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., 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).
Since
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.”).
Upon
review of the present complaint and since it addresses a use
of force which occurred, at the latest, several months prior
to his filing this complaint, the court finds that Broadhead
has failed to demonstrate that 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, 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 [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 that this
case be DISMISSED without prejudice for the plaintiff's
failure to pay the filing and administrative fees upon
initiation of this case. It is further
ORDERED
that on or before March 18, 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; frivolous, conclusive, or general objections will not
be considered.
Failure
to file written objections 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 ...