Joiner v. Giles et al (INMATE 2)

Filing 4

ORDER denying 2 Application to Proceed Without Prepayment of Fees and Affidavit; REPORT AND RECOMMENDATION of the Magistrate 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 4/22/2009. Signed by Honorable Terry F. Moorer on 4/8/2009. (wcl, )

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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 _____________________________ H E N R Y JOINER, #140 755 P l a in tif f , v. ASSISTANT WARDEN GILES, et al., D e f e n d a n ts . _____________________________ * * * * * 2:09-CV-244-TMH (WO) ORDER AND RECOMMENDATION OF THE MAGISTRATE JUDGE O n March 25, 2009, Henry Joiner, an inmate incarcerated at the Bullock Correctional F a c ility in Union Springs, Alabama, filed an application for leave to proceed in forma p a u p e ris . See 28 U.S.C. 1915(a). Pursuant to the directives of 28 U.S.C. 1915(g), a p riso n e r is not allowed to bring a civil action or proceed on appeal in forma pauperis if he " h a s, on 3 or more occasions, while incarcerated or detained in any facility, brought an action o r appeal in a court of the United States that was dismissed on the grounds that it is frivolous, m a licio u s, or fails to state a claim upon which relief may be granted, unless the prisoner is u n d e r imminent danger of serious physical injury." 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 Amendment." 1 I. DISCUSSION Court records establish that Plaintiff, while incarcerated or detained, has on at least three occasions had civil actions and/or appeals dismissed as frivolous, malicious, for failure to state a claim and/or for asserting claims against defendants who were immune from suit p u rs u a n t to the provisions of 28 U.S.C. 1915. The cases on which the court relies in finding a violation of 1915(g) include: 2 (1) Joiner v. Johnson, et al., Civil Action No. 7:99-849S 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 c o m p la in s that on May 6, 2008 prison guards at the Bullock Correctional Facility used e x c e ss iv e force when escorting him to the Shift Commander's Office due to his in s u b o r d in a t io n to a correctional officer. Although he was not hit by the correctional officers, P lain tiff asserts that the physical contact exacted on him by the guards during the escort e x a ce rb a te d existing damage to neck and spine and caused him severe pain and suffering.3 (Doc. No. 1 at pgs. 2-3.) The claims before this court do not allege nor in any way indicate that Plaintiff "is 2 Available at According to an attachment to the complaint Plaintiff asserts that he "accrued" certain medical conditions in 2005 during his incarceration in the Hale County Jail. The medical condition to which Plaintiff refers includes "advanced generalized pattern of severe multi-level degenerative disk disease with diffused cervi[c]al spinal stenosis, multi-level disk herniations, multi-level foraminal stenosis, and cervical spondylosis." (Doc. No. 1, Attachment at 3.) 3 under imminent danger of serious physical injury" as is required to meet the imminent danger e x c ep tio n to the application of 28 U.S.C. 1915(g).4 "A prisoner's allegation that he faced im m in e n t danger sometime in the past is an insufficient basis to allow him to proceed in fo r m a pauperis pursuant to the imminent danger exception to the statute." Medberry v. B u tle r, 185 F.3d 1189 (11 th Cir. 1999). In order to come within the "imminent danger" e x c ep tio n , the Eleventh Circuit requires "specific allegations of present imminent danger that m a y result in serious physical harm." Skillern v. Jackson, No. 606cv49, 2006 WL 1687752, a t *2 (S.D. Ga. June 14, 2006) (citing Brown v. Johnson, 387 F.3d 1344, 1349 (11th C ir.2 0 0 4 )). General and conclusory allegations not grounded in specific facts cannot invoke th e 1915(g) exception. Margiotti v. Nichols, 2006 WL 1174350 at *2 (N.D.Fla. May 2, 2 0 0 6 ). 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 (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 Plaintiff submits with his complaint an attachment. The attachment provides information regarding Plaintiff's previous litigation history, his chronic medical conditions, and the medical care and treatment he has received and continues to receive for these conditions. (See Doc. No. 1 at Attachment.) The court does not find, however, that the instant action presents a challenge to matters associated with his current medical care and treatment for his chronic medical conditions and notes that those matters, rather, are specifically being litigated by Plaintiff in a separate complaint he recently filed. See Joiner v. Allen, Civil Action No. 2:09-CV-243-TMH (M.D. Ala.). 4 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 March 25, 2009 (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 ORDERED that the parties shall file any objections to this Recommendation on or b e f o re April 22, 2009. 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 tri c 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 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. D o n e , this 8 th day of April 2009. /s/Terry F. Moorer TERRY F. MOORER U N IT E D STATES MAGISTRATE JUDGE

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