United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
CHARLES S. COODY UNITED STATES MAGISTRATE JUDGE.
cause of action is before the court on a 42 U.S.C. §
1983 complaint filed by James M. Broadhead, a frequent
federal litigant who is presently incarcerated at the
Donaldson Correctional Facility located in Bessemer, Alabama.
Broadhead alleges that while confined at the Bullock
Correctional Facility in Union Springs, Alabama, officials at
that facility used excessive force against him. Doc. 1 at 4.
Specifically, Broadhead alleges the challenged use of force
was caused by a blow to his testicles “out of hate
because of [his] conviction” for rape of an elderly
woman. Doc. 1 at 4.
initiating this case, Broadhead did not pay the $350.00
filing fee and attendant $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 fees 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(e) as frivolous or malicious. The actions on which this
court relies in finding a § 1915(g) violation by
Broadhead are as follows: (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).
Broadhead 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.”).
review of the complaint, and as it addresses a use of force
which occurred prior to his filing this action, 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) (finding 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)). Consequently, even if Broadhead
sought in forma pauperis status in this case, he is
not entitled to such status due to his violation of the
“three strikes” provision of 28 U.S.C. §
on the foregoing analysis, the court concludes 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) (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 this case be
DISMISSED without prejudice for Plaintiff's failure to
pay the filing and administrative fees upon initiation of
that on or before July 23, 2019, Plaintiff
may file an objection to the Recommendation. Plaintiff must
specifically identify the factual findings and legal
conclusions in the Recommendation to which objection is made;
frivolous, conclusive, or general objections will not be
considered. Plaintiff is advised this Recommendation is not a
final order and, therefore, it is not appealable.
to file written objections 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 ResolutionT ...