Jones v. Mack

          REPORT AND RECOMMENDATION

          SONJA F. BIVINS, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff 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.

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

         Section 1915(g) of The Prison Litigation Reform Act of 1995 (“PLRA”) 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.

28 U.S.C. § 1915(g).

         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 is a pretrial detainee^[1] 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.^[2] 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.

         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) (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, 2006).

         In 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.).

         Plaintiff 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, ”^[3] and that he needs protection by the Court from such retaliation. (Id. at 9).

         Plaintiff 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 ...