United States District Court, M.D. Alabama, Northern Division
JAMES M. BROADHEAD, #224 802, Plaintiff,
OFFICER LT. DOMINIC WHITLEY, et al., Defendants.
RECOMMENDATION OF THE MAGISTRATE JUDGE
RUSS WALKER UNITED STATES MAGISTRATE JUDGE
case is before the court on a 42 U.S.C. § 1983 complaint
filed on March 6, 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 his filing this
cause of action, prison officials at Bullock used excessive
force against him. Doc. 1 at 2-5. Specifically, Broadhead
alleges that while he was in handcuffs, Defendants struck him
with a night stick, sprayed him with mace, stomped or 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.
initiating this case, Broadhead did not pay the $350.00
filing fee and $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 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.” 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, 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).
it is the RECOMMENDATION of the Magistrate Judge that this
case be DISMISSED without prejudice for Plaintiff's
failure to pay the filing fee upon initiation of this case.
that on or before April 16, 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
the District Court. This Recommendation is not a final order
and, therefore, it is not appealable.
to file a written objection 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 ...