Whitlow v. Scharguard et al (INMATE 1)

Filing 3

ORDERED and RECOMMENDATION of the Magistrate Judge that 2 Motion for Leave to Proceed In Forma Pauperis is DENIED; and that the RECOMMENDATION of the Magistrate Judge that this case be dismissed without prejudice for the plaintiff's failure to pay the requisite filing fee upon the initiation of this case. Objections to R&R due by 4/7/2009. Signed by Honorable Charles S. Coody on 3/25/2009. (cb, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION SONJA WHITLOW, #136698, Plaintiff, v. DR. SCHARGUARD, et al., Defendants. ) ) ) ) ) ) ) ) ) )

CASE NO. 2:09-CV-227-TMH [WO]

ORDER AND RECOMMENDATION OF THE MAGISTRATE JUDGE This civil action is before the court on a 42 U.S.C. § 1983 complaint filed by Sonja Whitlow ["Whitlow"], a state inmate and frequent litigant in this court, on March 19, 2009. In this complaint, Whitlow challenges actions taken against her during her confinement at the Julia Tutwiler Prison for Women. Upon initiation of this case, Whitlow filed a motion for leave to proceed in forma pauperis pursuant to the provisions of 28 U.S.C. § 1915(a). Application to Proceed Without Prepayment of Fees - Court Doc. No. 2. However, under 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 she "has, on 3 or more occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United 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 serious physical injury."1 The records of this court establish that Whitlow, while incarcerated or detained, has on at least three occasions had civil actions dismissed as frivolous, malicious, for failure to state a claim and/or for asserting claims against defendants who were immune from suit pursuant to the provisions of 28 U.S.C. § 1915. The actions on which this court relies in finding a § 1915(g) violation are: (1) Whitlow v. Bailey, et al., Case No. 3:07-CV-960-MEFCSC (M.D. Ala. 2007); (2) Whitlow v. Denson, et al., Case No. 3:06-CV-773-WKW-CSC (M.D. Ala. 2006); (3) Whitlow v. Morgan, et al., Case No. 3:05-CV-1189-MEF-CSC (M.D. Ala. 2006); and (4) Whitlow v. O'Connel, et al., Case No. 2:92-CV-812-WHA-CSC (M.D. Ala. 1992). In the complaint now before the court, Whitlow complains that on February 27, 2009 a correctional officer grabbed her by the waist as she entered the hall and questioned her regarding prescribed medications. Plaintiff's Complaint - Court Doc. No. 1 at 2. Whitlow also challenges her commitment to the mental health unit, allegations made by officials "toward [her] diapolar abnormalcy[,]" and the prior provision of a dosage of incorrect medication. Id. The allegations made the basis of the instant complaint fail to demonstrate

In Rivera v. Allin, 144 F.3d 719, 731, cert. denied, 524 U.S. 978, 119 S.Ct. 27 (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." In Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 921 (2007), the Supreme Court abrogated Rivera but only to the extent it compelled an inmate to plead exhaustion of remedies in his complaint as "failure to exhaust is an affirmative defense under the PLRA ... and inmates are not required to specifically plead or demonstrate exhaustion in their complaints." 549 U.S. at 216, 127 S.Ct. at 921.

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that Whitlow was "under imminent danger of serious physical injury" at the time she filed this cause of action as is required to meet the imminent danger exception to the application of 28 U.S.C. § 1915(g). Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999) (a prisoner who has filed three or more frivolous lawsuits and seeks to proceed in forma pauperis must allege a present "imminent danger" to circumvent application of the "three strikes" provision of 28 U.S.C. § 1915(g)). Based on the foregoing, the court concludes that Whitlow's motion for leave to proceed in forma pauperis is due to be denied and this case dismissed without prejudice as Whitlow failed to pay the requisite filing fee upon her initiation of this cause of action. Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (emphasis in original) ("[T]he proper procedure is for the district court to dismiss the complaint without prejudice 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 [she] initiates the suit."). CONCLUSION Accordingly, it is ORDERED that the motion for leave to proceed in forma pauperis filed by Sonja Whitlow (Court Doc. No. 2) be and is hereby DENIED. Additionally, it is the

RECOMMENDATION of the Magistrate Judge that this case be dismissed without prejudice for the plaintiff's failure to pay the requisite filing fee upon the initiation of this case. It is further ORDERED that on or before April 7, 2009 the parties may file objections to the Recommendation. Any objections filed must specifically identify the findings in the
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Magistrate Judge's Recommendation to which the party is objecting. Frivolous, conclusive or general objections will not be considered by the District Court. The parties are advised that 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 Magistrate Judge's Recommendation shall bar the party from a de novo determination by the District Court of issues covered in the Recommendation and shall bar the party from attacking on appeal factual findings in the Recommendation accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. Nettles v.

Wainwright, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, en banc), 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. Done this 25th day of March, 2009.

/s/Charles S. Coody CHARLES S. COODY UNITED STATES MAGISTRATE JUDGE

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