Bozeman v. Hoyle et al (INMATE 2)

Filing 7

ORDER AND RECOMMENDATION OF THE MAGISTRATE as follows: Ordered that the 6 Application to Proceed Without Prepayment of Fees and Affidavit 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 12/27/2007. Signed by Judge Wallace Capel Jr. on 12/13/06. (sl, )

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Bozeman v. Hoyle et al (INMATE 2) Doc. 7 Case 2:06-cv-01054-WKW-WC Document 7 Filed 12/13/2006 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 IM M IE BOZEMAN, #163 240 P l a i n t if f , v. JO SE P H HOYLE, COI, et al., D e f e n d a n ts . ______________________________ * * * * * 2:06-CV-1054-WKW (WO) O R D E R AND RECOMMENDATION OF THE MAGISTRATE JUDGE O n December 6, 2006 Plaintiff, an inmate incarcerated at the Bullock County C o rre c tio n a l Facility in Union Springs, Alabama, filed an application for leave to proceed in forma pauperis. 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 gh 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 less the prisoner is under 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 Dockets.Justia.com Case 2:06-cv-01054-WKW-WC Document 7 Filed 12/13/2006 Page 2 of 4 D IS C U S S I O N 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) Bozeman v. Smith, et al., Civil Action No. 2:93-CV1 1 2 4 - W H A (M.D. Ala. 1993); (2) Bozeman v. James, et al., Civil Action No. 2:98-CV1 0 7 8 -M H T (M.D. Ala. 1998); and (3) Bozeman v. James, et al., Civil Action No. 2:05-CV8 4 7 -M H T (M.D. Ala. 2005). The court has carefully reviewed the claims presented in the instant action. The c l a i m s before this court do not allege nor in any way indicate that Plaintiff "is under im m in e n t danger of serious physical injury" as is required to meet the imminent danger ex ce p tio n to the application of 28 U.S.C. 1915(g). Medberry v. Butler, 185 F.3d 1189 (11 th C ir. 1999). Based on the foregoing, the court concludes that Plaintiff's motion for leave to p ro c e ed 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 h 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-01054-WKW-WC Document 7 Filed 12/13/2006 Page 3 of 4 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 December 6, 2006 (Doc. No. 6) 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 December 27, 2006. Any objections filed must specifically identify the findings in th e Magistrate Judge's Recommendation to which the party is objecting. Frivolous, co n clus ive or general objections will not be considered by the District Court. The parties are a d vis 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 advisements in the M a gis 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 kin g on appeal factual findings in the Recommendation accepted or adopted by the D i s tric t 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) 3 Case 2:06-cv-01054-WKW-WC Document 7 Filed 12/13/2006 Page 4 of 4 (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 13 th day of December 2006. / s / Wallace Capel, Jr. W A LLA C E CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE 4

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