Whitt v. McCatty et al (INMATE2)
ORDER denying 2 Application to Proceed Without Prepayment of Fees and Affidavit filed by Alfonza Whitt; REPORT AND RECOMMENDATIONS that this case be DISMISSED without prejudice for Plaintiff's failure to pay the full filing fee upon the initiation of this case. Objections to R&R due by 10/31/2006. Signed by Judge Charles S. Coody on 10/18/2006. (cc, )
Whitt v. McCatty et al (INMATE2)
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IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION __________________________________ A L F O N Z A WHITT, #126 386 P l a in tif f , v. W.B. MCCATTY, et al., * * * * 1:06-CV-923-MHT (WO)
D e f e n d a n ts . * __________________________________ ORDER AND RECOMMENDATION OF THE MAGISTRATE JUDGE O n October 12, 2006, Alfonza Whitt, an inmate incarcerated at the Bibb County C o rre c tio n a l Facility in Brent, Alabama, filed an application for leave to proceed in forma p a u p e ris . See 28 U.S.C. § 1915(a). Pursuant to the directives of 28 U.S.C. § 1915(g), a p riso n e r is not allowed to bring a civil action or proceed on appeal in forma pauperis if he " h as , on 3 or more occasions, while incarcerated or detained in any facility, brought an action o r appeal in a court of the United States that was dismissed on the grounds that it is frivolous, m a licio u s, or fails to state a claim upon which relief may be granted, unless the prisoner is u n d e r imminent danger of serious physical injury."1
In Rivera v. Allin, 144 F.3d 719, 731 (11th Cir. 1998), the Court determined that the "three strikes" provision of 28 U.S.C. § 1915(g), which requires frequent filer prisoner indigents to prepay the entire filing fee before federal courts may consider their cases and appeals, "does not violate the First Amendment right to access the courts; the separation of judicial and legislative powers; the Fifth Amendment right to due process of law; or the Fourteenth Amendment right to equal protection, as incorporated through the Fifth Amendment."
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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, malicious, for failure to state a claim and/or for asserting claims against defendants who were immune from suit p u rs u a n t to the provisions of 28 U.S.C. § 1915. The cases on which the court relies in finding a violation of § 1915(g) include: (1) Whitt v. Nelson, et al., Civil Action No. 1:01-CV-158M H T (M.D. Ala. 2001); (2) Whitt v. City of Dothan Municipal Court, et al., Civil Action N o . 1:01-CV-120-WHA (M.D. Ala. 2001); and (3) Whit v. Byrd, et al., Civil Action No. 1 :99 -C V -11 9 6 -M H T (M.D. Ala. 2001). In the instant complaint, Plaintiff complains that Defendants failed to transport him to a drug treatment facility in violation of a court order. The claims before this court do not a lle g e nor in any way indicate that Plaintiff "is under imminent danger of serious physical in ju ry" as is required to meet the imminent danger exception to the application of 28 U.S.C. § 1915(g). Medberry v. Butler, 185 F.3d 1189 (11 th Cir. 1999). Based on the foregoing, the court concludes that Plaintiff's motion for leave to p ro c e ed in forma pauperis is due to be denied and this case dismissed without prejudice for P la in tif f 's failure to pay the requisite $350.00 filing fee upon the initiation of this cause of a c tio n . Dupree v. Palmer, 284 F.3d 1234, 1236 (11 th Cir. 2002) (emphasis in original) (" [ T ]h e proper procedure is for the district court to dismiss the complaint without prejudice w e n 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.").
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CONCLUSION I n light of the foregoing, it is ORDERED that the motion for leave to proceed in forma pauperis filed by Plaintiff o n October 12, 2006 (Doc. No. 2) is DENIED. It is the RECOMMENDATION of the Magistrate Judge that this case be DISMISSED w ith o u t prejudice for Plaintiff's failure to pay the full filing fee upon the initiation of this case. It is further ORDERED that the parties shall file any objections to this Recommendation on or b e f o re October 31, 2006. Any objections filed must specifically identify the findings in the M a g is tra te Judge's Recommendation to which the party is objecting. Frivolous, conclusive o r general objections will not be considered by the District Court. The parties are advised th a t this Recommendation is not a final order of the court and, therefore, it is not appealable. F a ilu re to file written objections to the proposed findings and advisements in the M a g is tra te Judge's Recommendation shall bar the party from a de novo determination by the D i s t r ic t Court of issues covered in the Recommendation and shall bar the party from a tta c k in g on appeal factual findings in the Recommendation accepted or adopted by the D is tric t Court except upon grounds of plain error or manifest injustice. Nettles v.
W a in w r ig h t, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 3 3 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en b a n c ), adopting as binding precedent all of the decisions of the former Fifth Circuit
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handed down prior to the close of business on September 30, 1981. D o n e this 18th day of October, 2006.
/s/Charles S. Coody CHARLES S. COODY C H IE F UNITED STATES MAGISTRATE JUDGE
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