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Cobble v. U.S. Attorney General

United States District Court, M.D. Alabama, Northern Division

June 18, 2019

DANIEL ERIC COBBLE, #758 572, Plaintiff,
v.
U.S. ATTORNEY GENERAL, CURRENT AND FUTURE, Defendant.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          CHARLES S. COODY UNITED STATES MAGISTRATE JUDGE.

         This case is before the court on a petition for mandamus filed by Plaintiff, an inmate incarcerated at the Sumter County Jail in Americus, Georgia. 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.”[1] 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).

         I. DISCUSSION

         Court records establish that Plaintiff, while incarcerated or detained, has on at least three occasions had civil actions and/or appeals dismissed as frivolous, as malicious, for failure to state a claim and/or for asserting claims against defendants immune from suit under 28 U.S.C. § 1915.[2]The cases on which this court relies in finding a § 1915(g) violation are: Cobble v. U.S. Government, No. 1:18-CV-92-LAG (M.D. Ga. 2018) (dismissed as frivolous); Cobble v. Jones, No. 4:16-CV-362-LAG (M.D. Ga. 2016) (dismissed as frivolous and for failure to state a claim); Cobble v. Bloom, No. 1:04-CV-1150-SCJ (N.D.Ga. 2004) (dismissed as frivolous); Cobble v. David, No. 1:04-CV-560-SCJ (N.D.Ga. 2004) (dismissed as frivolous); Cobble v. Cobb Cty. Police, No. 1:02-CV-2821-RWS (N.D.Ga. 2002) (dismissed for failure to state a claim).[3] This court concludes these summary dismissals place Plaintiff in violation of 28 U.S.C. § 1915(g).

         Since Plaintiff has in excess of three strikes, he may not proceed in forma pauperis in this case unless he demonstrates 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.”).

         Here, Plaintiff files suit against United States Attorney General William Barr to “enforce federal law and fed[eral] case laws upon all peoples…” The petition goes on to assert an amalgam of unrelated statements and comments. After careful review, and even construing all allegations in favor of Plaintiff, his claims do not entitle him to avoid the bar of § 1915(g) because they do not allege nor indicate he was “under imminent danger of serious physical injury” when he filed this cause of action as required to meet the imminent danger exception to the application of 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)); Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002) (noting the imminent danger exception is available only “[w]hen a threat or prison condition is real and proximate, and when the potential consequence is ‘serious physical injury.'”); 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.”).

         Based on the foregoing, the court concludes this case is due to be summarily dismissed without prejudice as Plaintiff failed to pay the requisite filing and administrative fees upon his initiation of this case. Dupree, 284 F.3d at 1236 (emphasis in original) (finding “the 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).

         II. CONCLUSION

         Accordingly, it is the RECOMMENDATION of the Magistrate Judge that:

1. Plaintiff's motion for leave to proceed in forma pauperis (Doc. 2) be DENIED; and
2. This case be DISMISSED without prejudice for Plaintiff's failure to pay the filing and administrative fees upon his initiation of this case.

         It is further

         ORDERED that on or before July 2, 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. Plaintiff is advised this Recommendation is not a final order and, therefore, it is not appealable.

         Failure 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 ...


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