Hall v. Hunter (INMATE 1)
ORDER AND RECOMMENDATION OF THE MAGISTRATE JUDGE that the 2 motion for leave to proceed in forma pauperis be and is hereby DENIED; it is the RECOMMENDATION of the Magistrate Judge that this case be dismissed without prejudice for the plaintiff's failure to pay the full filing fee upon the initiation of this case; further ORDERED that on or before April 3, 2012 the parties may file objections to the Recommendation. Signed by Honorable Judge Charles S. Coody on 3/20/12. (scn, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
JIMMY EARL HALL, #103508,
CASE NO. 1:11-CV-759-TMH
ORDER AND RECOMMENDATION OF THE MAGISTRATE JUDGE
This 42 U.S.C. § 1983 action is before the court on an amended complaint filed by
Jimmy Earl Hall [“Hall”], a state inmate and frequent federal litigant, on October 12, 2011
(Doc. No. 7). In this amended complaint, Hall alleges the defendant used unnecessary
force against him during an appearance before the Circuit Court of Houston County,
Alabama on July 1, 2010.
Upon initiation of this case, Hall filed a motion for leave to proceed in forma
pauperis under 28 U.S.C. § 1915(a). Application to Proceed Without Prepayment of Fees Court Doc. No. 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.”1
The records of this court establish that Hall, while incarcerated or detained, has on
at least five occasions had civil actions dismissed as frivolous, malicious, for failure to
state a claim and/or for asserting claims against defendants who were immune from suit
pursuant to the provisions of 28 U.S.C. § 1915. The actions on which this court relies in
finding a § 1915(g) violation by the plaintiff are: (1) Hall v. Hand, et al., Case No. 1:94CV-1452-ID (M.D. Ala. 1995); (2) Hall v. German, Case No. 1:94-CV-309-ID (M.D. Ala.
1994); (3) Hall v. Locke, et al., Case No. 1:94-CV-84-MHT (M.D. Ala. 1994); (4) Hall v.
German, Case No. 1:93-CV-1431-MHT (M.D. Ala. 1993); and (5) Hall v. Whiddle, et al.,
Case No. 1:93-CV-1355-MHT (M.D. Ala. 1993).
In this cause of action, Hall challenges the constitutionality of actions taken against
him on July 1, 2010. The allegations made the basis of the instant complaint utterly and
completely fail to demonstrate that Hall was “under imminent danger of serious physical
injury” at the time he filed this cause of action 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,
In Rivera v. Allin, 144 F.3d 719, 731, cert. denied, 524 U.S. 978, 119 S.Ct. 27 (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.” In Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 921 (2007), the
Supreme Court abrogated Rivera but only to the extent it compelled an inmate to plead exhaustion of
remedies in his complaint as “failure to exhaust is an affirmative defense under the PLRA ... and inmates are
not required to specifically plead or demonstrate exhaustion in their complaints.” 549 U.S. at 216, 127 S.Ct.
1193 (11th Cir. 1999) (a prisoner who has filed three or more frivolous lawsuits and seeks
to proceed in forma pauperis must allege a present “imminent danger” to circumvent
application of the “three strikes” provision of 28 U.S.C. § 1915(g)). Based on the
foregoing, the court concludes that Hall’s motion for leave to proceed in forma pauperis
is due to be denied and this case dismissed without prejudice as Hall failed to pay the
requisite filing fee upon initiation of this cause of action. Dupree v. Palmer, 284 F.3d
1234, 1236 (11th Cir. 2002) (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.”).
Accordingly, it is
ORDERED that the motion for leave to proceed in forma pauperis filed by Jimmy
Earl Hall on September 14, 2011 (Doc. No. 2) be and is hereby DENIED. Additionally,
it is the RECOMMENDATION of the Magistrate Judge that this case be dismissed without
prejudice for the plaintiff’s failure to pay the full filing fee upon the initiation of this case.
It is further
ORDERED that on or before April 3, 2012 the parties may file objections to the
Recommendation. Any objections filed must specifically identify the findings in the
Magistrate Judge’s Recommendation to which the party is objecting. Frivolous, conclusive
or general objections will not be considered by the District Court. The parties are advised
that this Recommendation is not a final order of the court and, therefore, it is not
Failure to file written objections to the proposed findings and advisements in the
Magistrate Judge’s Recommendation shall bar the party from a de novo determination by
the District Court of issues covered in the Recommendation and shall bar the party from
attacking on appeal factual findings in the Recommendation accepted or adopted by the
District Court except upon grounds of plain error or manifest injustice. Nettles v.
Wainwright, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d
33 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981,
en banc), adopting as binding precedent all of the decisions of the former Fifth Circuit
handed down prior to the close of business on September 30, 1981.
Done this 20th day of March, 2012.
/s/ Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE
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