United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
WALLACE CAPEL, JR. CHIEF UNITED STATES MAGISTRATE JUDGE
case is before the court on a 42 U.S.C. § 1983 complaint
filed by Plaintiff, an indigent state inmate incarcerated at
the Bibb Correctional Facility in Brent,
Alabama. 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: (1) Marable v.
Crowder, Civil Action No. 2:94-CV-1137-SCP (N.D. Ala.
1999); (2) Marable v. Crowder, Civil Action No.
2:96-CV-91-WMA (N.D. Ala. 1996); and (3) Marable v.
Strange, Civil Action No. 2:14-CV-1960-WMA (N.D. Ala.
2015). This court concludes these summary dismissals place
Plaintiff in violation of 28 U.S.C. § 1915(g).
allegations that are not grounded in specific facts which
indicate that serious physical injury is imminent are not
sufficient to invoke the exception to § 1915(g).”
Niebla v. Walton Correctional Inst., 2006 WL
2051307, *2 (N.D.Fla. July 20, 2006) (citing Martin v.
Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). “The
plaintiff must allege and provide specific fact allegations
of ongoing serious physical injury, or a pattern of
misconduct evidencing the likelihood of imminent serious
physical injury, and vague allegations of harm and unspecific
references to injury are insufficient.” Id.
(internal quotations omitted) (citing Martin, 319
F.3d at 1050; White v. State of Colorado, 157 F.3d
1226, 1231 (10th Cir. 1998)).
Plaintiff files suit against Defendant Dr. Darbouze alleging
this physician denied him adequate medical care and treatment
during his incarceration at the Easterling Correctional
Facility from 2009 to 2017. The court has carefully reviewed
Plaintiff's claims against Defendant Darbouze. 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 that 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.”).
on the foregoing and Plaintiff's failure to pay the
requisite filing and administrative fees upon initiation of
this case, the court concludes this case is due to be
summarily dismissed without prejudice. 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 [an inmate is not entitled] to proceed
in forma pauperis [due] to [violation of] 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) (same).
it is the RECOMMENDATION of the Magistrate Judge that:
Plaintiff's motion for leave to proceed in forma
pauperis (Doc. 32) be DENIED; and
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 September 19, 2018,
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.
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 ...