Brooks v. Barrow et al (INMATE2)

Filing 4

REPORT AND RECOMMENDATIONS re 1 Inmate 1983 Complaint filed by Calvin Bernard Brooks; It is the Recommendation of the Mag 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 6/19/2006. Signed by Judge Delores R. Boyd on 6/5/06. (vma, )

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Brooks v. Barrow et al (INMATE2) Doc. 4 Case 2:06-cv-00499-MHT-DRB Document 4 Filed 06/05/2006 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 ______________________________ C A LV IN BROOKS, #137 190 P l a in tif f , v. TYRONE BARROW, et al., D e f e n d a n ts . ______________________________ * * * * * 2:06-CV-499-MHT (WO) ORDER AND RECOMMENDATION OF THE MAGISTRATE JUDGE O n June 2, 2006, Calvin Brooks, an inmate incarcerated at the Easterling Correctional F a c ility in Clio, Alabama, filed an application for leave to proceed in forma pauperis. See 2 8 U.S.C. 1915(a). Pursuant to the directives of 28 U.S.C. 1915(g), a prisoner is not a llo w e d to bring a civil action or proceed on appeal in forma pauperis if he "has, on 3 or m o re 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, m a licio u s, or fails to state a claim upon which relief may be granted, unless the prisoner is u n d er 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." 1 Case 2:06-cv-00499-MHT-DRB Document 4 Filed 06/05/2006 Page 2 of 4 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) Brooks v. Hackett, et al., Civil Action No. 2:95-CV2 0 5 8 -M H T (M.D. Ala. 1995); (2) Brooks v. Horn, et al., Civil Action No. 2:99-CV-113-ID (M . D . Ala. 2001); (3) Brooks v. Riddle, 2:99-CV-320-MHT (M.D. Ala. 2001); and (4) B ro o k s v. Kitrell, Civil Action No. 2:99-CV-855-ID (M.D. Ala. 2001). T h e court has carefully reviewed the claims presented in the instant action. The c la im s before this court do not in any way indicate that Plaintiff "is under imminent danger o f serious physical injury" as is required to meet the imminent danger exception to the ap p lica tio n of 28 U.S.C. 1915(g).2 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 The court notes that the allegations presented in the complaint include contentions that Defendants are engaged in the "mass murder" of inmates through inadequate medical treatment in order to sell body parts, Defendants use forced administration of a medical treatment programs in order to torture inmates, and that "[t]his court and its judges came up with a plan to bar the plaintiff from filing valid complaints unless his life was in danger." (Doc. No. 1.) A review of these allegations as well as the other claims in Plaintiff's complaint reveals that Plaintiff either lacks standing to bring the claims, see Allen v. Wright, 468 U.S. 737, 751 (1984), that the claims describe "fantastic or delusional scenarios" which are subject to dismissal for frivolousness as they are truly delusive and incredible, see Neitzke v. Williams, 490 U.S. 319, 328 (1989), or that Plaintiff is not in imminent danger of serious physical injury. 2 Case 2:06-cv-00499-MHT-DRB Document 4 Filed 06/05/2006 Page 3 of 4 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 ac 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 S IO N In light of the foregoing, it is ORDERED that the motion for leave to proceed in forma pauperis filed by Plaintiff o n June 2, 2006 (Doc. No. 3) 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 ca se. It is further ORDERED that the parties shall file any objections to this Recommendation on or b e fo re June 19, 2006. Any objections filed must specifically identify the findings in the M a gis 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 gis tra te Judge's Recommendation shall bar the party from a de novo determination by the Case 2:06-cv-00499-MHT-DRB Document 4 Filed 06/05/2006 Page 4 of 4 District Court of issues covered in the Recommendation and shall bar the party from a tta c kin g on appeal factual findings in the Recommendation accepted or adopted by the D istrict Court except upon grounds of plain error or manifest injustice. Nettles v. W a in wr 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, e n 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. D o n e , this 5 th day of June 2006. /s / Delores R. Boyd D E LO R E S R. BOYD U N IT E D STATES MAGISTRATE JUDGE

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