Grandinetti v. Taylor et al (INMATE2)

Filing 3

ORDER and RECOMMENDATION of the Magistrate Judge: 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 5/9/2007. Signed by Judge Wallace Capel Jr. on 4/27/07. (sl, )

Grandinetti v. Taylor et al (INMATE2)

Doc. 3

Case 2:07-cv-00346-MHT-WC

Document 3

Filed 04/27/2007

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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 _____________________________ F R A N C IS A. GRANDINETTI, II # A -1 8 5 087 P l a in tif f , v. W A R D E N ERNEST TAYLOR, CCA/TCCF, e t al., D e f e n d a n ts . _____________________________ * * * * * 2:07-CV-346-MHT (WO)

ORDER AND RECOMMENDATION OF THE MAGISTRATE JUDGE P lain tiff , Francis Grandinetti ["Grandinetti"], is a Hawaii state inmate currently h o u se d at the Tallahatchi County Correctional Facility located in Tutwiler, Mississippi. G ra n d in e tti filed this civil action on April 25, 2007. Grandinetti has filed a motion

re q u e stin g that he be allowed to proceed with the instant complaint in forma pauperis. (Doc. N o . 2). 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 "has, on 3 or more occasions, w h ile incarcerated or detained in any facility, brought an action or appeal in a court of the U n ited States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of s e rio u s physical injury."1
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

Dockets.Justia.com

Case 2:07-cv-00346-MHT-WC

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I . DISCUSSION The court takes judicial notice of the U.S. Party/Case Index, PACER Service Center, a v a ilab le at http://pacer.psc.uscourts.gov. A review of PACER records establish that

P la in tif f , while incarcerated or detained, has on at least three occasions had civil actions and a p p e als dismissed as frivolous, malicious, for failure to state a claim and/or for asserting c la im s against defendants who were immune from suit pursuant to the provisions of 28 U .S .C . § 1915. The cases on which the court relies in finding a violation of § 1915(g) inclu d e, but are not limited to: (1) Grandinetti v. Iranon, et al., Civil Action No. 1:96-CV1 0 1 -R H C -K F G (E.D. Tex. 1998) (complaint dismissed as frivolous and for failure to state a claim); (2) Grandinetti v. Bobby Ross Group, Inc., Civil Action No. 1:96-CV-117-THW C R (E.D. Tex. 1999) (complaint dismissed as frivolous and for failure to state a claim); (3) Grandinetti v. Iranon, et al., Civil Action No. 1:96-CV-118-TH (E.D. Tex. 1998) (co m p lain t dismissed as frivolous); and (4) Grandinetti v. Corrections Corporation of A m e ric a , et al., 5:06-CV-57-SRC (N.D. Tex. 2006) (complaint dismissed as frivolous and m a lic io u s under 28 U.S.C. § 1915(e) and as barred under 28 U.S.C. § 1915(g)). The court has carefully reviewed the allegations presented the instant complaint. The c la im 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

Amendment."

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Case 2:07-cv-00346-MHT-WC

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ex ce p tio n to the application of 28 U.S.C. § 1915(g).2 Medberry v. Butler, 185 F.3d 1189 (1 1 th Cir. 1999). Based on the foregoing, the court concludes that Plaintiff's request 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 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."). 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 April 25, 2007 (Doc. No. 2) be and is hereby 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

Despite Plaintiff's handwritten notation in the caption of his complaint that he is filing an "imminent injury case," it is clear from a review of the pleadings filed herein that Plaintiff does not meet the imminent danger exception to the application of 28 U.S.C. § 1915(g). Plaintiff has also written "(Federal Habeas Corpus Writ)" in the caption of his complaint. Again, it is clear from a review of the complaint that this matter is properly filed as civil rights action under 42 U.S.C. § 1983 and/or as a Bivens-type action. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).

2

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Filed 04/27/2007

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O R D E R E D that the parties shall file any objections to this Recommendation on or b e f o re May 9, 2007. Any objections filed must specifically identify the findings in the M a g is tra te 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 i s t r i c 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 (5 th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 3 3 (11 th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11 th 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 27th day of April 2007.

/s/ Wallace Capel, Jr. W A L L A C E CAPEL, JR. UNITED STATES MAGISTRATE JUDGE

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