Shabazz v. Glover et al (INMATE2)

Filing 3

ORDERED that the 2 motion for leave to proceed in forma pauperis is denied. It is the RECOMMENDATION of the Magistrate Judge 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 7/5/2007. Signed by Judge Terry F. Moorer on 6/22/07. (sl, )

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Shabazz v. Glover et al (INMATE2) Doc. 3 Case 1:07-cv-00550-WKW-TFM Document 3 Filed 06/22/2007 Page 1 of 4 IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION _____________________________ A S H -S H A K U R SHABAZZ, #244 618 P l a in tif f , v. MARK GLOVER, et al., D e f e n d a n ts . _____________________________ * * * * * 1:07-CV-550-WKW (WO) ORDER AND RECOMMENDATION OF THE MAGISTRATE JUDGE O n June 21, 2007, Ash-Shakur Shabazz, an inmate incarcerated at the Holman C o rre c tio n a l Facility in Atmore, 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 a s, 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 I . DISCUSSION In Rivera v. Allin, 144 F.3d 719, 731 (11 th Cir. 1998), the Court determined that the "three strikes" p r o v is io n of 28 U.S.C. 1915(g), which requires frequent filer prisoner indigents to prepay the entire filing f e e 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 p r o c e s s of law; or the Fourteenth Amendment right to equal protection, as incorporated through the Fifth A m e n d m e n t." 1 Dockets.Justia.com Case 1:07-cv-00550-WKW-TFM Document 3 Filed 06/22/2007 Page 2 of 4 C o u r t 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) Shabazz v. Glover, et al., Civil Action No. 1:05-CV6 9 5 -M H T (M.D. Ala. 2005); (2) Shabazz v. Valaski, et al., Civil Action No. 1:05-CV-716M H T (M.D. Ala. 2006); and (3) Shabazz v. Glover, et al., Civil Action No. 1:05-CV-834M E F (M.D. Ala. 2005). T h e court has carefully reviewed the claims presented in the instant action. Plaintiff c o m p la in s about a failure to receive adequate medical care and treatment for kidney problems d u rin g his incarceration in the Houston County Jail in April 2005. The claims before this c o u rt do not allege nor in any way indicate that Plaintiff "is under imminent danger of serious p h y s ic a l injury" as is required to meet the imminent danger exception to the application of 2 8 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 proceed in forma pauperis is due to be denied and this case dismissed without prejudice for P la in tiff'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 h 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."). -2- Case 1:07-cv-00550-WKW-TFM Document 3 Filed 06/22/2007 Page 3 of 4 I I . 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 June 21, 2007 (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 R e c o m m e n d a tio n on or before July 5, 2007. Any objections filed must specifically identify th e findings in the Magistrate Judge's Recommendation to which the party is objecting. F r iv o lo u s , conclusive or general objections will not be considered by the District Court. The p a rtie s are advised that 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 is tric 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 -3- Case 1:07-cv-00550-WKW-TFM Document 3 Filed 06/22/2007 Page 4 of 4 h a n d e d down prior to the close of business on September 30, 1981. D o n e , this 22 n d day of June 2007. / s /T e r r y F. Moorer TERRY F. MOORER U N IT E D STATES MAGISTRATE JUDGE -4-

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