United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
CHARLES S. COODY UNITED STATES MAGISTRATE JUDGE.
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.” 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).
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.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). This court concludes these
summary dismissals place Plaintiff in violation of 28 U.S.C.
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.”).
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
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).
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.
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.
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 ...