Joiner v. Astrue et al (MAG+)

Filing 10

ORDERED that: (1) Joiner's 7 8 9 objections are overruled; and (2) the 6 Recommendation that this case be dismissed is adopted and this case is dismissed without prejudice for failure to pay the full filing fee upon the initiation of the case. Signed by Honorable William Keith Watkins on 4/29/09. (sl, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION H E N R Y JOINER, P l a in tif f , v. M IC H A E L J. ASTRUE, Commissioner of Social Security, et al., D e f e n d a n ts . ) ) ) ) ) ) ) ) ) )

C A S E NO. 2:09-CV-160-WKW [WO]

M E M O R A N D U M OPINION & ORDER O n March 25, 2009, the Magistrate Judge filed an order and recommendation (" R e c o m m e n d a tio n " ) in this case. (Doc. # 6.) Plaintiff Henry Joiner ("Joiner") filed general o b je c tio n s (Doc. # 7), objections directed specifically to the Recommendation (Doc. # 8), and a motion in rebuttal to the Recommendation (Doc. # 9). The portions of a recommendation to which a defendant objects are reviewed de novo. 28 U.S.C. § 636(b)(1). A de novo review of the record and law confirms that the Recommendation (Doc. # 6) to dismiss this case without prejudice should be adopted. The Recommendation finds that 2 8 U.S.C. § 1915(g) bars Joiner's case because it requires the court to reject Joiner's in forma p a u p e ris application.1 Under § 1915(g), a prisoner cannot bring a civil action as a

p r o c e e d i n g in forma pauperis if he has, "on 3 or more occasions, while incarcerated . . . b ro u g h t an action . . . in a court of the United States that was dismissed on the grounds that

The Magistrate Judge therefore also ordered that Joiner's motion for leave to proceed in forma pauperis (Doc. # 3) be denied. (Recommendation 6.)

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it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless [ h e ] is under imminent danger of physical harm." The Recommendation identifies three a c tio n s Joiner filed while imprisoned that were dismissed on those grounds, and, as the R e c o m m e n d a tio n concludes, Joiner's claims that he was wrongfully denied social security b e n e fits "do not allege nor in any way indicate that [he] `is under imminent danger of serious p h ysical injury.'" (Recommendation 2.) Joiner's objection that denying him benefits will lead to "imminent threat and danger o f physical injury in the form of less concrete injuries, such as mental and emotional distress, e m o tio n a l pain and sufferring [sic], and the personal humiliation of it all" (Doc. # 8, at 2) is c o n c lu s o ry and fails to identify a serious or physical injury, as the text explicitly and s p e c if ic a lly requires. See, e.g., Harris v. Baldwin, No. CV507-018, 2007 WL 951810, at *2 ( S .D . Ga. Mar. 28, 2007); cf. Ibrahim v. District of Columbia, 463 F.3d 3, 6-7 (D.C. Cir. 2 0 0 6 ) (describing examples of serious physical injury under the statute). Indeed, the fact that Jo in e r's injuries are "less concrete" undermines his argument that they are serious, physical, o r imminent. Joiner's past physical injuries also do not qualify his application under the e x c e p tio n . "[A] prisoner's allegation that he faced imminent danger sometime in the past is a n insufficient basis to allow him to proceed in forma pauperis pursuant to the imminent d a n g e r exception to the statute." Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999). M o re o v e r, finding that Joiner was wrongfully denied social security benefits in prior years ­ the merits of his claim (Doc. # 2 "Conclusion" 7) ­ would do nothing to remedy any

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a lle g e d harm that results from a degenerative disease Joiner admits is now being treated (D o c s. # 8, at 2, # 9 at 2). The purpose of the exception is to allow for the "`vindication of . . . the right to be free of unwarranted imminent danger of serious physical harm," Miller v. D o n a ld , 541 F.3d 1091, 1096 (11th Cir. 2008) (internal quotation marks and citation o m itte d ), which assumes that hearing the case would protect the right and that resolving the c la im in a plaintiff's favor could assuage the harm. Accordingly, it is ORDERED that: 1. 2. J o in e r's objections (Docs. # 7, 8, 9) are OVERRULED; and T h e Recommendation (Doc. # 6) that this case be dismissed is ADOPTED, and

th e case is DISMISSED without prejudice for failure to pay the full filing fee upon the in itia tio n of the case. D O N E this 29th day of April 2009. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE

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