United States District Court, M.D. Alabama, Southern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
M. BORDEN UNITED STATES MAGISTRATE JUDGE.
case is before the court on a 42 U.S.C. § 1983 complaint
filed by Plaintiff Ronald Balcom, an indigent inmate
incarcerated at the Houston County Jail in Dothan, Alabama.
Balcom alleges that “for the last months snakes have
been found in the toilets . . . In the kitchen, there [is] a
bed of snakes in the boiler, ” . . . [and jailers]
don't know if the snakes are poisoness [sic].”
Balcom further alleges that the ventilation system at the
jail is covered with mold and mildew, the drains are stopped
up, at least three snakes have been seen, and rats eat the
bread. Doc. 1 at 1-2. Balcom seeks damages and requests an
investigation of the jail and he contends that these
conditions have placed over 400 inmates' lives in danger
or imminent danger. Doc. 1 at 2.
initiation of this case, Balcom filed a motion for leave to
proceed in forma pauperis under 28 U.S.C. §
1915(a). Doc. 2. Under 28 U.S.C. § 1915, a prisoner may
not 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.” 28 U.S.C. § 1915(g). 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). “The
prisoner cannot simply pay the filing fee after being denied
in forma pauperis status.” Id.
records establish that Balcom, while incarcerated or
detained, has on at least three occasions had civil actions
or appeals dismissed as frivolous, as malicious, for failure
to state a claim, or for asserting claims against defendants
immune from suit under 28 U.S.C. § 1915. The cases on
which this court relies in finding a § 1915(g) violation
by Balcom are: (1) Balcom v. Blumenfeld, et al., No.
1:09-CV-814-TMH-WC (M.D. Ala. Sept. 30, 2009) (complaint
frivolous); (2) Balcom v. Valenza, et al., No.
1:19-CV-132-WHA-CSC (M.D. Ala. Mar. 18, 2019) (complaint
malicious); and (3) Balcom v. Culver, et al., No.
1:19-CV-141-WHA-CSC (M.D. Ala. Mar. 18, 2019) (complaint
malicious). The court concludes that these summary dismissals
place Balcom in violation of 28 U.S.C. § 1915(g).
Balcom has three strikes, he may not proceed in forma
pauperis unless his claims demonstrate that he was
“under imminent danger of serious physical
injury” upon initiation of this case. 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)); 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 bar, the facts 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 the 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”).
court has carefully reviewed Balcom's claims. Even
construing all allegations in his favor, his claims do not
entitle him to avoid the bar of § 1915(g) because they
do not allege or indicate that he was “under imminent
danger of serious physical injury” when he filed this
cause of action. 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)); Abdul-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.”).
on the foregoing and Balcom's failure to pay the
requisite filing and administrative fees upon initiation of
this case, the court concludes this case is due to be
summarily dismissed without prejudice. Dupree, 284
F.3d at 1236 (“[T]he proper procedure is for the
district court to dismiss the complaint without prejudice
when [an inmate is not entitled] to proceed in forma
pauperis [due] to [violation of] the provisions of
§ 1915(g) [because the prisoner] must pay the filing fee
at the time he initiates the suit.”);
Vanderberg v. Donaldson, 259 F.3d 1321, 1324 (11th
Cir. 2001) (“After the third meritless [or malicious]
suit, the prisoner must pay the full filing fee at the time
he initiates the suit.”).
it is the RECOMMENDATION of the Magistrate Judge that:
Plaintiff's motion for leave to proceed in forma
pauperis (Doc. 2) be DENIED; and
case be DISMISSED without prejudice for Plaintiff's
failure to pay the filing and administrative fees upon his
initiation of this case.
further ORDERED that on or before June 6,
2019, Plaintiff may file an objection to this
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 ...