Noe v. Alabama Department of Corrections et al(INMATE 1)

Filing 3

ORDER denying 2 Application to Proceed Without Prepayment of Fees and Affidavit filed by Woodburck Noe,, REPORT AND RECOMMENDATIONS re 1 Inmate 1983 Complaint filed by Woodburck Noe, Additionally, it is the Recommendation of the Mag. Judge that this case be dismissed without prejudice for Noe's failure to pay the full filing fee upon the initiation of this case; Objections to R&R due by 12/27/2005. Signed by Judge Charles S. Coody on 12/13/05. (vma, )

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Noe v. Alabama Department of Corrections et al(INMATE 1) Doc. 3 Case 2:05-cv-01158-MHT-CSC Document 3 Filed 12/13/2005 Page 1 of 4 IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION W O O D B U R C K NOE, #148475, ) ) Plaintiff, ) ) v. ) ) ) A LAB A M A DEPT. OF CORRECTIONS, et al., ) ) Defendants. ) C I V I L ACTION NO. 2:05-CV-1158-T [W O ] O R D E R AND RECOMMENDATION OF THE MAGISTRATE JUDGE O n December 7, 2005, Woodburck Noe ["Noe"], a state inmate and frequent litigant in this court, filed a motion for indigency treatment which the court construes as a motion for le a v e to proceed in forma pauperis pursuant to the provisions of 28 U.S.C. 1915(a).1 P u rsu a n t to the directives of 28 U.S.C. 1915(g), a prisoner is not allowed to bring a civil a c tio n or proceed on appeal in forma pauperis if he "has, on 3 or more occasions, while in c a rc e ra te d or detained in any facility, brought an action or appeal in a court of the United S ta te s that was dismissed on the grounds that it is frivolous, malicious, or fails to state a c la im upon which relief may be granted, unless the prisoner is under imminent danger of s e rio u s physical injury." 2 In this motion, Noe states that he has no money or means to pay for court costs and requests that he be allowed to proceed without prepayment of such costs. The only manner in which Noe may proceed before this court without prepayment of fees is upon the granting of in forma pauperis status under the provisions of 28 U.S.C. 1915. 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 2 1 Dockets.Justia.com Case 2:05-cv-01158-MHT-CSC Document 3 Filed 12/13/2005 Page 2 of 4 T h e records of this court establish that Noe, while incarcerated, has on at least seven o c c a sio n s had 42 U.S.C. 1983 cases 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 cases on which the court relies in finding a v iolatio n of the directives of 1915(g) by Noe are as follows: (1) Noe v. McGraw, Civil A ctio n No. 2:95-CV-1195-T (M. D. Ala. 1995), (2) Noe v. James, Civil Action No. 2:94-CV9 2 8 -T (M.D. Ala. 1994), (3) Noe v. Hunt, et al., Civil Action No. 2:94-CV-86-A (M.D. Ala. 1 9 9 4 ), (4) Noe v. Boyd, et al., Civil Action No. 2:92-CV-1350-A (M.D. Ala. 1992), (5) Noe v . Hunt, et al., Civil Action No. 2:92-CV-977-D (M.D. Ala. 1992), (6) Noe v. Hunt, et al., C ivil Action No. 2:92-CV-711-H (M.D. Ala. 1992), and (7) Noe v. Hunt, et al., Civil Action N o . 2:92-CV-565-H (M.D. Ala. 1992).3 In the instant complaint, Noe asserts that he has been denied access to the courts. In su p p o rt of this assertion, Noe maintains that on December 2, 2005 the defendants refused to p ro v id e him "a `legal kit' which consisted of two envelopes with ten sheets of paper." P la in tiff's Complaint at 3.4 Noe further complains that on this same date defendant Culver 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." 3 The requisite dismissals are indicated on the docket sheets maintained by this court in the referenced cases. The filing of this cause of action is a direct contradiction of this assertion as it is clear that on or before December 5, 2005, the day Noe signed the instant complaint, Noe obtained the materials necessary to file a civil action with this court. Moreover, Noe acknowledges that on December 1, 2005 upon his request for materials "to do legal work" defendant Sylvester Nettles provided him with "paper and 2 (two) 4 2 Case 2:05-cv-01158-MHT-CSC Document 3 Filed 12/13/2005 Page 3 of 4 v io la te d his constitutional rights when he "grabb[ed] me in the shift commander's office w h e n I just was trying to get stationary to do legal work." Id. at 6. The complaint in this case fails to demonstrate that Noe was "under imminent danger o f serious physical injury" at the time he filed this case as is required to meet the imminent d a n g e r exception to the application of 28 U.S.C. 1915(g). See Medberry v. Butler, 185 F .3 d 1189 (11 th Cir. 1999). Based on the foregoing, the court concludes that Noe's motion f o r leave to proceed in forma pauperis is due to be denied and this case dismissed without p re ju d ic e as Noe failed to pay the requisite 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."). C O N C L U SIO N A c c o r d in g ly, it is ORDERED that the motion for leave to proceed in forma pauperis filed by W o o d b u rc k Noe on December 7, 2005 be and is hereby DENIED. Additionally, it is the R E C O M M E N D A T IO N of the Magistrate Judge that this case be dismissed without prejudice f o r Noe's failure to pay the full filing fee upon the initiation of this case. envelopes . . ." Plaintiff's Complaint at 4-5. 3 Case 2:05-cv-01158-MHT-CSC Document 3 Filed 12/13/2005 Page 4 of 4 It is further ORDERED that on or before December 27, 2005 the parties may objections to the R e c o m m e n d a tio n . 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 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 handed down prior to the close of business on September 30, 1981. D o n e this 13 th day of December, 2005. /s/Charles S. Coody CHARLES S. COODY C H IE F UNITED STATES MAGISTRATE JUDGE 4

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