Hudnall v. Truesdale (INMATE 2)

Filing 8

[VACATED PURSUANT TO ORDER ENTERED ON 11/7/06] 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 10/30/2006. Signed by Judge Vanzetta P. McPherson on 10/17/06. (sl, ) Modified on 11/7/2006 (sl, ).

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Hudnall v. Truesdale (INMATE 2) Doc. 8 Case 2:06-cv-00910-MHT-VPM Document 8 Filed 10/17/2006 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 __________________________________ J A M E S J. HUDNALL, SR., #155 690 P l a in tif f , v. CHRISTINE M. TRUESDALE * * * * 2:06-CV-910-MHT (WO) D e f e n d a n t. * __________________________________ ORDER AND RECOMMENDATION OF THE MAGISTRATE JUDGE O n October 13, 2006, James Hudnall, an inmate incarcerated at the Holman C o rre c tio n a l Facility located in Atmore, Alabama, filed an application for leave to proceed i n forma pauperis.1 See 28 U.S.C. 1915(a). Pursuant to the directives of 28 U.S.C. 1 9 1 5 (g ), a prisoner is not allowed to bring a civil action or proceed on appeal in forma p a u p e ris if he "has, on 3 or more occasions, while incarcerated or detained in any facility, b ro u g h t an action or appeal in a court of the United States that was dismissed on the grounds th a t it is frivolous, malicious, or fails to state a claim upon which relief may be granted, u n le s s the prisoner is under imminent danger of serious physical injury." 2 Plaintiff originally filed his complaint in the United States District Court for the Northern District o f Alabama. By order entered September 21, 2006, the federal court for the Northern District of Alabama t r a n s f e r r e d the complaint to this court. I n 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." 2 1 Dockets.Justia.com Case 2:06-cv-00910-MHT-VPM Document 8 Filed 10/17/2006 Page 2 of 4 I. 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) Hudnall v. Johnson, et al., Civil Action No. 1:96-CV2 2 0 -H (S.D. Ala. 1996); (2) Hudnall v. Dempsey, Civil Action No. 2:96-CV-1714-D (M.D. A la. 1997); and (3) Hudnall v. Williams, et al., Civil Action No. 2:00-CV-1680-N (N.D. Ala. 2 0 0 2 ) (appeal frivolous). The court has carefully reviewed the claims presented in the instant action. Plaintiff c o m p lain s that Defendant Truesdale either interfered with and/or failed to assist him in his e ffo rts to achieve parole before the Alabama Board of Pardons and Paroles. The claims b e f o re this court do not allege nor in any way indicate that Plaintiff "is under imminent d a n g e r of serious physical injury" as is required to meet the imminent danger exception to th e application of 28 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 Case 2:06-cv-00910-MHT-VPM Document 8 Filed 10/17/2006 Page 3 of 4 1915(g)" because the prisoner "must pay the filing fee at the time he initiates the suit."). II. CONCLUSION F o r good cause, it is therefore ORDERED that the motion for leave to proceed in forma pauperis (Doc. No. 2) is D E N IE D . 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 Recommendation on or b e fo re 30 October 2006. 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 Case 2:06-cv-00910-MHT-VPM Document 8 Filed 10/17/2006 Page 4 of 4 33 (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 17 th day of October 2006. /s / Vanzetta Penn McPherson V A N Z E T T A PENN MCPHERSON U N IT E D STATES MAGISTRATE JUDGE

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