Joiner v. Astrue et al (MAG+)

Filing 6

ORDERED that the 3 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 4/7/2009. Signed by Honorable Wallace Capel, Jr on 3/24/09. (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 i n t if f , v. MICHAEL J. ASTRUE, Commissioner of S o c ia l Security, et al.,, D e f e n d a n ts . ) ) ) ) ) ) ) ) ) )

CASE NO. 2:09-CV-160-WKW

ORDER AND RECOMMENDATION OF THE MAGISTRATE JUDGE O n 27 February 2009, Henry Joiner, an inmate incarcerated at the Bullock County C o rre c tio n a l Facility in Union Springs, Alabama, filed a Complaint, Brief in Support, and a n application for leave to proceed in forma pauperis. (Doc. #1-3); see 28 U.S.C. § 1915(a). P u rsu a n t to the directives of 28 U.S.C. § 1915(g), 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 im upon which relief may be granted, unless the prisoner is under imminent danger of s e rio u s physical injury." 1 Plaintiff has previously violated the provisions of 28 U.S.C. § 1 9 1 5 (g ). Accordingly, the undersigned denies the application for leave to proceed in forma

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

pauperis and recommends that this case be DISMISSED. I. D IS C U S S IO N Court 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, malicious, or 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 fin d ing a violation of § 1915(g) include: (1) Joiner v. Johnson, et al., Civil Action No. 7:998 4 9 -S C P (N.D. Ala. 1999); (2) Joiner v. Hayes, et al., Civil Action No. 2:05-CV-478-MEF (M .D . Ala. 2005); and (3) Joiner v. Montgomery Police Dept., et al., Civil Action No. 2:05C V -66 1 (M.D. Ala. 2005). T h e Court has carefully reviewed the claims presented in the instant action. Plaintiff re q u e sts the Court review and reverse the denial of his claim for Social Security benefits and to allow him to initiate a lawsuit "against the Defendants responsible for [his] disabilities." (D o c . #1 at 3). The Plaintiff's claims do not allege nor in any way indicate that Plaintiff "is u n d e r imminent danger of serious physical injury" as is required to meet the imminent danger e x c e p tio n to the application of 28 U.S.C. § 1915(g). See Medberry v. Butler, 185 F.3d 1189, 1 1 9 3 (11th Cir. 1999). An action appealing the denial of social security benefits is not e x e m p t from the three-strikes provision of §1915, nor does "the withholding of social s e c u rity benefits [] constitute conduct which places a person under imminent threat of serious p h ys ic a l injury." Sabedra v. Social Sec. Admin., 2008 WL 5203709, *2 (N.D. Tex. Dec. 11, 2 0 0 8 ); see also Valdez v. Commissioner of Social Sec., 2009 WL 562888 (S.D. Tex. March

4, 2009). 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 (11th Cir. 2002) ("[T]he proper procedure is for the district court to dismiss the complaint without prejudice when it denies the prisoner le a v e to proceed in forma pauperis pursuant to the provisions of § 1915(g)" because the p ris o n e r "must pay the filing fee at the time he initiates the suit.")(emphasis in original). II. C O N C L U SIO N I n light of the foregoing, it is ORDERED that the Motion for leave to proceed in forma pauperis (Doc. #3) is D E N IE D . 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 7 April 2009. Any objections filed must specifically identify the findings in the M a g is tra te Judge's Recommendation to which the party is objecting. Frivolous, conclusive o r general objections will not be considered by the District Court. The parties are advised th a t this Recommendation is not a final order of the court and, therefore, it is not appealable.

Failure 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 3 3 (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 24th day of March, 2009. /s/ Wallace Capel, Jr. WALLACE CAPEL, JR. UNITED STATES MAGISTRATE JUDGE