Lee v. Hope et al (INMATE2)

Filing 3

REPORT AND RECOMMENDATIONS that this case be dismissed without prejduice for plaintiff's failure to pay the full filing fee upon the initiation of this case. Objections to R&R due by 6/5/2006. Signed by Judge Vanzetta P. McPherson on 5/22/2006. (cc, )

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Lee v. Hope et al (INMATE2) Doc. 3 Case 2:06-cv-00443-MEF-VPM Document 3 Filed 05/22/2006 Page 1 of 4 IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION _______________________________ G R E G O R Y LEE, #184 070 P l a i n t if f , v. W A R D E N HOPE, et al., D e f e n d a n ts . _______________________________ * * * * * 2:06-CV-443-MEF (WO) O R D E R AND RECOMMENDATION OF THE MAGISTRATE JUDGE O n May 18, 2006, Gregory Lee, an inmate incarcerated at the Staton Correctional F a c ility located in Elmore, Alabama, filed the instant civil rights action. Plaintiff requests le a v e to proceed in this action in forma pauperis. U n d e r the provisions of 28 U.S.C. 1915, 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 seriou s physical injury." 1 28 U.S.C. 1915(g). In Rivera v. Allin, 144 F.3d 719, 731 (11th 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 not violate the First A m e n d m e n t right to access the courts; the separation of judicial and legislative powers; the Fifth Amendment r ig h t to due process of law; or the Fourteenth Amendment right to equal protection, as incorporated through th e Fifth Amendment." 1 Dockets.Justia.com Case 2:06-cv-00443-MEF-VPM Document 3 Filed 05/22/2006 Page 2 of 4 I . DISCUSSION C o u r t records establish that Plaintiff, while incarcerated or detained, has on at least th re e occasions had civil actions and/or appeals dismissed as frivolous, as malicious, for fa ilu re to state a claim and/or for asserting claims against defendants who were immune from su it pursuant to the provisions of 28 U.S.C. 1915. The cases on which the court relies in fin d in g a violation of 1915(g) are as follows: (1) Lee v. Haley, et al., Civil Action No. 2 :00 -C V -98 5 -T (M.D. Ala. 2000), (2) Lee v. Haley, et al., Civil Action No. 2:02-CV-1343-A (M .D . Ala. 2003), and (3) Lee v. Holt, et al., Civil Action No. 2:03-CV-1055-D (M.D. Ala. 2 0 0 3 ). The court has carefully reviewed the allegations presented in the instant complaint. T h e y do not allege nor in any way indicate that Plaintiff was "under imminent danger of s e rio u s physical injury" at the time the instant complaint was filed as is required to meet the im m in e n t danger exception to the application of 28 U.S.C. 1915(g). See Medberry v. B u tle r, 185 F.3d 1189 (11 th Cir. 1999). B a se d 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 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 2:06-cv-00443-MEF-VPM Document 3 Filed 05/22/2006 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 May 18, 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 O R D E R E D that the parties are DIRECTED to file any objections to the said R e c o m m e n d a tio n on or before June 5, 2006. Any objections filed must specifically identify th e findings in the Magistrate Judge's Recommendation to which a party objects. Frivolous, co n clus ive or general objections will not be considered by the District Court. The parties are a d v is e d that this Recommendation is not a final order of the court and, therefore, it is not a p p e a la b le . F a ilu re to file written objections to the proposed findings and recommendations in the M a g is tra te Judge's report shall bar the party from a de novo determination by the District C o u rt of issues covered in the report and shall bar the party from attacking on appeal factual fin d in g s in the report accepted or adopted by the District Court except upon grounds of plain e rro r or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5 th Cir. 1982). See Stein v . Reynolds Securities, Inc., 667 F.2d 33 (11 th Cir. 1982). See also Bonner v. City of P r ic h a r d , 661 F.2d 1206 (11 th Cir. 1981, en banc), adopting as binding precedent all of the 3 Case 2:06-cv-00443-MEF-VPM Document 3 Filed 05/22/2006 Page 4 of 4 d e c is io n s of the former Fifth Circuit handed down prior to the close of business on S e p te m b e r 30, 1981. D o n e , this 22 n d day of May 2006. /s / Vanzetta Penn McPherson V A N Z E T T A PENN MCPHERSON UNITED STATES MAGISTRATE JUDGE 4

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