Lee v. Hope et al (INMATE2)

Filing 3

ORDER denying 2 motion to Proceed Without Prepayment of Fees and Affidavit; REPORT AND RECOMMENDATIONS of the Mag Judge that this case be DISMISSED without prejudice for plf's failure to pay the full filing fee upon the initiation of this case; Objections to R&R due by 9/20/2007. Signed by Judge Wallace Capel Jr. on 9/7/07. (djy, )

Lee v. Hope et al (INMATE2)

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Case 2:07-cv-00795-WKW-WC

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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 _____________________________ G R E G O R Y KENNY LEE, #184 070 P l a in tif f , v. M R . HOPE (WARDEN), et al., D e f e n d a n ts . _____________________________ * * * * * 2:07-CV-795-WKW (WO)

O R D E R AND RECOMMENDATION OF THE MAGISTRATE JUDGE O n September 4, 2007, Gregory Lee, an inmate incarcerated at the Fountain C o rre c tio n a l Facility located in Atmore, Alabama, filed the instant civil rights action. P la in tif f requests leave to proceed in this action in forma pauperis. U n d e r the provisions of 28 U.S.C. § 1915, a prisoner is not allowed to bring a civil a c tio n or proceed on appeal in forma pauperis if he "has, on 3 or more occasions, while in c a rc e ra te d or detained in any facility, brought an action or appeal in a court of the United S ta te s that was dismissed on the grounds that it is frivolous, malicious, or fails to state a c la i m upon which relief may be granted, unless the prisoner is under imminent danger of seriou s physical injury." 1 28 U.S.C. § 1915(g).

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 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."

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I . DISCUSSION C o u r t records establish that Plaintiff, while incarcerated or detained, has on at least th re e occasions had civil actions and/or appeals dismissed as frivolous, as malicious, for f a ilu re to state a claim and/or for asserting claims against defendants who were immune from su it pursuant to the provisions of 28 U.S.C. § 1915. The cases on which the court relies in f in d i n g a violation of § 1915(g) are as follows: (1) Lee v. Haley, et al., Civil Action No. 2 :00 -C V -98 5 -T (M.D. Ala. 2000), (2) Lee v. Haley, et al., Civil Action No. 2:02-CV-1343-A (M .D . Ala. 2003), and (3) Lee v. Holt, et al., Civil Action No. 2:03-CV-1055-D (M.D. Ala. 2 0 0 3 ). The court has carefully reviewed the allegations presented in the instant complaint. T h e y do not allege nor in any way indicate that Plaintiff was "under imminent danger of s e rio u s physical injury" at the time the instant complaint was filed as is required to meet the im m in e n t danger exception to the application of 28 U.S.C. § 1915(g). See Medberry v. B u tle r, 185 F.3d 1189 (11 th Cir. 1999). B a se d 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 w e n it denies the prisoner leave to proceed in forma pauperis pursuant to the provisions of

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§ 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 September 4, 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 O R D E R E D that the parties are DIRECTED to file any objections to the said R ec o m m en d atio n on or before September 20, 2007. Any objections filed must specifically id e n tif y the findings in the Magistrate Judge's Recommendation to which a party objects. F r iv o lo u s , conclusive or general objections will not be considered by the District Court. The p a rtie s are advised that 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 recommendations in the M a g i s tr a t e Judge's report shall bar the party from a de novo determination by the District C o u rt of issues covered in the report and shall bar the party from attacking on appeal factual f in d in g s in the report accepted or adopted by the District Court except upon grounds of plain e rr o r or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5 th Cir. 1982). See Stein

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v . Reynolds Securities, Inc., 667 F.2d 33 (11 th Cir. 1982). See also Bonner v. City of P r ic h a r d , 661 F.2d 1206 (11 th Cir. 1981, en banc), adopting as binding precedent all of the d e c is io n s of the former Fifth Circuit handed down prior to the close of business on S e p te m b e r 30, 1981. D o n e , this 7th day of September 2007.

/s/ Wallace Capel, Jr. WALLACE CAPEL, JR. UNITED STATES MAGISTRATE JUDGE

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