United States District Court, M.D. Alabama, Northern Division
RICHARD D. KENNEDY, #196 984, Plaintiff,
COMMISSIONER DUNN, ALABAMA D.O.C., Defendant.
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 on January 9, 2019 by Richard Kennedy, who is
incarcerated at the Elmore Correctional Facility in Elmore,
Alabama. Kenney alleges that (1) he does not have access to
the law library; (2) he is subjected to unconstitutional
conditions of confinement at Elmore because of overcrowding
and violence among inmates; (3) the Alabama Board of Pardons
and Paroles should be abolished for violating the Eighth
Amendment by imposing excessive punishment on inmates serving
life sentences; and (4) there should be a cap on life
sentences because there is no distinction between life
sentences and sentences of life without the possibility of
parole due to the unlimited power of the parole board. Doc.
initiating this case, Kennedy filed a motion for leave to
proceed in forma pauperis. Doc. 2. 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 Kennedy, while incarcerated or
detained, has on three or more 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 Kennedy are:
(1) Kennedy v. Lockett, No. 1:08-cv-169-CG-M (S.D.
Ala. 2008) (frivolous and appeal dismissed as frivolous); (2)
Kennedy v. Reese, No. 2:09-cv-275-TMH-CSC (M.D. Ala.
2009) (dismissed under 28 U.S.C. § 1915(e)(2)(B)(i-iii)
and appeal dismissed as frivolous); (3) Kennedy v. Union
Planters, No. 1:00-cv-353-CB-M (S.D. Ala. 2000)
(frivolous); and (4) Kennedy v. Albach, No.
1:00-cv-470-AH-M (S.D. Ala. 2001) (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 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”);
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.”).
Upon review of the complaint, the court finds that Kennedy
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). See 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)).
court therefore concludes that this case is due to be
summarily dismissed without prejudice because Kennedy failed
to pay the requisite filing fee upon his initiation of this
case. Dupree v. Palmer, 284 F.3d 1234, 1236 (11th
Cir. 2002) (“[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.”); Vanderberg
v. Donaldson, 259 F.3d 1321, 1324 (11th Cir. 2001)
it is the RECOMMENDATION of the Magistrate Judge:
Plaintiff s motion for leave to proceed in forma
pauperis (Doc. 2) be DENIED;
case be DISMISSED without prejudice for Plaintiffs failure to
pay the filing fee upon initiation of this case.
further ORDERED that on or before May 22,
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 Trust Co. v.
Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir.
1993); Henley v. Johnson, 885 F.2d 790, 794 (11th
In Rivera v. Allin, 144
F.3d 719, 731 (11th Cir. 1998), the court determined that the
“three strikes” provision of 28 U.S.C. §
1915(g), which requires frequent filer prisoner indigents to
prepay the entire filing fee before federal courts may
consider their cases and appeals, “does not violate the
First Amendment right to access the courts; the separation of
judicial and legislative powers; the Fifth Amendment right to
due process of law; or the Fourteenth Amendment right to
equal protection, as incorporated through the Fifth
Amendment.” In Jones v. Bock, 549 U.S. 199,
216 (2007), the Supreme Court abrogated Rivera but
only to the extent it compelled an inmate to plead exhaustion
of remedies in his complaint as ...