United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
F. BIVINS, UNITED STATES MAGISTRATE JUDGE.
Laryie Earl Jones, a pretrial detainee who is seeking leave
to proceed in forma pauperis, filed the instant
action against Huey Hoss Mack and others. (Docs. 1, 2). The
action has been referred to the undersigned for appropriate
action pursuant to 28 U.S.C. § 636(b)(1)(B) and S.D.
Ala. GenLR 72(a)(2)(R). Upon review of the complaint,
Plaintiff's other filings in this action, 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.
28 U.S.C. § 1915(g) and Plaintiff's Litigation
1915(g) of The Prison Litigation Reform Act of 1995
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.
28 U.S.C. § 1915(g).
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).
Plaintiff is a pretrial detainee and is seeking 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 or appeals
dismissed for one of the foregoing reasons, namely,
Laryie Earl Jones v. City of Samson Police Dep't, et
al., 96-01830-ID-JLC (M.D. Ala. 1996) (dismissed Mar.
10, 1997); Laryie Earl Jones v. Millard H. McWhorter,
III, et al., 04-00809-MEF-DRB (M.D. Ala. 2004)
(dismissed Oct. 20, 2004); Laryie Earl Jones v. Grady
Lanier, et al., 04-00810-MHT-DRB (M.D. Ala. 2004)
(dismissed Sept. 23, 2004); Laryie Earl Jones v. Anthony
Clark, et al., CA 05-00973-MEF-DRB (M.D. Ala. 2005)
(dismissed Nov. 18, 2005); Laryie Earl Jones v. Anthony
Clark, et al., No. 07-11971-F (11th Cir. 2007) (appeal
dismissed as frivolous Aug. 1, 2007). In addition, Plaintiff
has had other actions dismissed pursuant to 28 U.S.C. §
1915(g), for example, Laryie Earl Jones v. Greg White, et
al., CA 06-00280-ID-DRB (M.D. Ala. 2006) (dismissed Apr.
20, 2006); Laryie Earl Jones v. Greg White, et al.,
CA 06-00289-WKW-DRB (M.D. Ala. 2006) (dismissed May 5, 2006);
and Laryie Earl Jones v. Anthony Clark, et al., CA
06-00296-MEF-DRB (M.D. Ala. 2006) (dismissed May 9, 2006).
Thus, the present action is due to be dismissed unless
Plaintiff can satisfy the exception to § 1915.
Section 1915(g)'s Exception.
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).
§ 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)
(citations and internal quotation marks omitted). General and
conclusory allegations not grounded in specific facts cannot
invoke the § 1915(g) exception. Margiotti v.
Nichols, 2006 WL 1174350, at *2-3 (N.D. Fla. May 2,
Plaintiff's § 1983 complaint (Doc. 1), he makes
numerous disjointed allegations, which relate to his arrest
and confinement at the Baldwin County Corrections Center,
against several Defendants, including Baldwin County Sheriff
Huey Hoss Mack, Baldwin County District Attorney Robert
Wilters, Circuit Court Judges Jody Bishop and William E.
Scully, Jr., and various Baldwin County Sheriff's Office
and/or Corrections Center employees. As best the Court can
discern, Plaintiff contends that while he was living in
Geneva County, Alabama, Defendants Mack, Wilters, Bishop,
Scully, and two Baldwin County Sheriff's Office employees
conspired to have him arrested on a “bogus”
charge of “theft of property, ” which they knew
would violate his parole. (Id. at 4-5, 14-16).
Plaintiff asserts that he was “denied his due
process” when he was “place[d] under a bogus
arrest warrant, . . . ki[d]nap[p]ed” and transferred
from Geneva County Jail to Baldwin County Corrections Center,
where he has been held unlawfully since October 16, 2018.
(Id. at 5). Plaintiff alleges he is still suffering
back pains from his three-hour ride from Geneva County to the
Baldwin County Corrections Center. (Id.). Plaintiff
also alleges that he is suffering “cruel and unusual
punishments” based on the jail's conditions, which
allegedly include “molds and mildeweds, ” lack of
ventilation, insects, not enough nutritious meals, only two
meals per day on weekends, cold food, lack of cold water,
lack of hot water, 300 percent markup of commissary items,
overcrowding, water leaks in the dorm, not enough showers for
inmates, unclean vents, unclean linens, no heater, excessive
and unwarranted lockdowns, not enough access to the
telephone, being handcuffed inside the facility, denial of
television use, and no recreation. (Id. at 5-9). He
further asserts that Defendants “mi[x] all inmate[s] up
together” by placing federal detainees charged with
violent crimes in the same block as “non-violent”
inmates, such as himself. (Id. at 7). Plaintiff also
complains that inmates are not allowed to write letters to
family, that inmates receive no correspondence from appointed
attorneys, and that the facility lacks a law library, because
of which Defendants “lie.” (Id. at 6).
He also alleges that the medical department was allowed to
take his money. (Id.).
claims he is a diabetic who “has been treated
indifferently from the other inmates that has diabetic. At
night he worry about his sugar might bottom out, the nurses
is untrained, they don't no what diabetic meals, suppose
to be on diabetic trays they don't no.”
(Id. at 7). Plaintiff alleges he is “getting
sicker cause of molds and mildews breathing daily (24) hours
a day.” (Id. at 9). Later in his complaint,
Plaintiff alleges that he is sick with a bad cold, that he
signed up for sick call on December 6, 2018, at 10:30 a.m.,
that he was not seen by 3:00 p.m., and that as a result, he
will infect his whole cell block. (Id. at 16). He
also alleges that after being moved to a dormitory with
mostly federal detainees and many violent inmates, he is now
sleeping on the floor, despite having “a bad back
injury.” (Id. at 9). Plaintiff asserts that he
“can't get any medical attention because of
untrained staff.” (Id. at 16). Plaintiff
contends Defendants will retaliate against him because they
have “been explode, ” and that he needs protection
by the Court from such retaliation. (Id. at 9).
asserts that Defendants should be ordered to “pay $2,
000, 000 each or dismiss bogus charge[.]” (Id.
at 17). He also requests an immediate release from ...