Strong v. Hardwick (INMATE 2)

Filing 3

ORDER that 2 Motion for Leave to Proceed IFP is denied; that 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; and that the parties shall file any objections to the Recommendation on or before 2/13/07. Signed by Judge Wallace Capel Jr. on 2/1/2007. (cb, )

Strong v. Hardwick (INMATE 2)

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IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION __________________________________ J O H N DAVID STRONG, #124 754 P l a in tif f , v. JOHNNY HARDWICK, JUDGE CIRCUIT COURT in and for MONTGOMERY COUNTY, * * * * * 2:07-CV-87-WKW (WO)

D e f e n d a n t. * __________________________________ ORDER AND RECOMMENDATION OF THE MAGISTRATE JUDGE O n January 29, 2007, John Strong, an inmate incarcerated at the Easterling C o rre c tio n a l Facility located in Clio, Alabama, filed an application for leave to proceed in fo r m a pauperis. See 28 U.S.C. § 1915(a). Pursuant to the directives of 28 U.S.C. § 1915(g), a prisoner is not allowed to bring a civil action or proceed on appeal in forma pauperis if he " h as , on 3 or more occasions, while incarcerated or detained in any facility, brought an action o r 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 e r 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

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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) Strong v. Owen, et al., Civil Action No. 2:04-CV-145W H A (M.D. 2004); (2) Strong v. Dunaway, et al., Civil Action No. 5:99-CV-324-JHH (N.D. A la. 2001) (appeal frivolous); (3) Strong v. Hellums, et al., Civil Action No. 2:-95-CV-989W H A (M.D. Ala. 1995); (4) Strong v. Jones, et al., Civil Action No. 2:95:-CV-961-WHA (M .D . Ala. 1995); and (5) Strong v. White, et al., Civil Action No. 2:95-CV-936-WHA (M.D. A la . 1995). The court has carefully reviewed the claims presented in the instant action. Plaintiff c o m p la in s about matters related to litigation he has pending in the state courts. 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 p ro c e ed in forma pauperis is due to be denied and this case dismissed without prejudice for P la in tif f '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

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when 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."). 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 January 29, 2007 (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 ORDERED that the parties shall file any objections to this Recommendation on or b e f o re February 13, 2007. Any objections filed must specifically identify the findings in th e Magistrate Judge's Recommendation to which a party objects. Frivolous, conclusive or g e n e ra l objections will not be considered by the District Court. The parties are advised that th is 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

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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 1 st day of February 2007.

/ s / Wallace Capel, Jr. W A L L A C E CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE