United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
CHARLES S. COODY, UNITED STATES MAGISTRATE JUDGE
U.S.C. § 1983 action is before the court on a complaint
filed by Glennie Dee Davis, a state inmate and frequent
federal litigant currently incarcerated at the Staton
Correctional Facility, on July 22, 2019. In the instant
complaint, Davis alleges that Officer Murray pushed him and
sprayed him with a chemical agent on July 12, 2019. Doc. 1 at
4-5. Davis asserts the force used by Officer Murray was
without reason or justification. Doc. 1 at 5. Finally, Davis
alleges “no medical care was ordered” for
treatment of the temporary effects the chemical agent had on
him. Doc. 1 at 5.
to the complaint is a document Davis prepared and sent to the
warden of Staton, Joseph Headley, challenging the use of
force referenced in the instant complaint. Doc. 1-1. In his
response, Warden Headley stated that Davis was “under
the influence [of drugs] and assaulted a nurse in the medical
unit. A ‘use of force' investigation was done and
concluded, that ‘the force was
justified.'” Doc. 1-1 at 4. Davis challenges
the veracity of the warden's response. Doc. 1-1 at 4.
initiation of this case, Davis filed a motion for leave to
proceed in forma pauperis under 28 U.S.C. §
1915(a). 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” at the time he filed
the complaint 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
records of the federal courts of this state establish that
Davis, while incarcerated or detained, has on at least three
occasions had civil actions summarily dismissed as frivolous,
malicious or for failure to state a claim on which relief may
be granted. The cases on which this court relies in finding a
§ 1915(g) violation by Davis are as follows: (1)
Davis v. Correctional Medical Services, et al., No.
4:08-CV-1908-KOB-PWG (N.D. Ala. Jan. 8, 2009); (2) Davis
v. CMS Medical Services, No. 2:99-CV-1790-RBP-HGD (N.D.
Ala. July 20, 1999); (3) Davis v. Spann, No.
2:97-CV-3000-WMA-PWG (N.D. Ala. Feb. 13, 1998); (4) Davis
v. Hatchett, et al.., No. 2:96-CV-395-MHT-CSC (M.D. Ala.
April 3, 1996); (5) Davis v. Lewis, et al., No.
2:96-CV-17-WHA-CSC (M.D. Ala. Jan. 31, 1996); and (6)
Davis v. Thigpen, et al., No.
2:92-CV-1106-WHA-CSC (M.D. Ala. Oct. 1, 1992).
Davis has at least six strikes, he may not proceed in
forma pauperis in this case unless the claims raised in
the complaint 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)) (emphasis added); May v.
Myers, 2014 WL 3428930, at *2 (S.D. Ala. July 15, 2014)
(finding 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.”); Abdul-Akbar v. McKelvie, 239
F.3d 307, 315 (3rd 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
thorough review of the complaint and in accordance with
applicable federal law, the court finds that the claims set
forth in the complaint challenging a use of force against
Davis on July 12, 2019 and his purely conclusory allegation
of imminent danger do not in any way indicate Davis was
actually “under imminent danger of serious physical
injury” at the time of filing this cause of action 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) (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 of serious physical
injury” to circumvent application of the “three
strikes” provision of 28 U.S.C. § 1915(g)).
on the foregoing analysis, the court concludes that this case
is due to be summarily dismissed without prejudice as Davis
failed to pay the requisite filing fee upon the initiation of
this case. Dupree, 284 F.3d at 1236 (emphasis in
original) (“[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 at the time he initiates
the suit.”); Vanderberg v. Donaldson, 259 F.3d
1321, 1324 (11th Cir. 2001) (holding that “[a]fter the
third meritless 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:
motion for leave to proceed in forma pauperis filed
by Glennie Dee Davis (Doc. 2) be DENIED.
case be DISMISSED without prejudice for Davis' failure to
pay the full filing ...