Noe v. Alabama Department of Corrections (INMATE1)

Filing 3

ORDER and REPORT AND RECOMMENDATIONS: denying 2 motion for leave to proceed in forma pauperis filed by Woodburck Noe; RECOMMENDATION of the Magistrate Judge that this case be dismissed without prejudice for Noe's failure to pay the full filing fee upon the initiation of this case; Objections to R&R due by 8/10/2009. Signed by Honorable Charles S. Coody on 7/28/2009. (cc, )

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IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION WOODBURCK NOE, #148475, Plaintiff, v. ALABAMA DEPT. OF CORRECTIONS, Defendant. ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. 2:09-CV-692-WHA [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 Woodburck Noe ["Noe], a state inmate and frequent litigant in this court. In this complaint, Noe complains that the Bullock County Correctional Facility is overcrowded and understaffed. Upon initiation of this case, Noe filed a motion for leave to proceed in forma pauperis pursuant to the provisions of 28 U.S.C. 1915(a). Plaintiff's 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 he "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 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 1 The records of this court establish that Noe, while incarcerated, has on at least seven occasions had 42 U.S.C. 1983 cases 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 cases on which the court relies in finding a violation of the directives of 1915(g) by Noe are as follows: (1) Noe v. McGraw, Civil Action No. 2:95-CV-1195-T (M. D. Ala. 1995), (2) Noe v. James, Civil Action No. 2:94-CV-928-T (M.D. Ala. 1994), (3) Noe v. Hunt, et al., Civil Action No. 2:94-CV-86-A (M.D. Ala. 1994), (4) Noe v. Boyd, et al., Civil Action No. 2:92-CV-1350-A (M.D. Ala. 1992), (5) Noe v. Hunt, et al., Civil Action No. 2:92-CV-977-D (M.D. Ala. 1992), (6) Noe v. Hunt, et al., Civil Action No. 2:92-CV-711-H (M.D. Ala. 1992), and (7) Noe v. Hunt, et al., Civil Action No. 2:92-CV-565-H (M.D. Ala. 1992).2 In the complaint now before the court, Noe maintains the correctional facility within which he is confined is overcrowded and understaffed. Plaintiff's Complaint - Court Doc. No. 1 at 2. Noe asserts "[i]f a fight, violence, or ham was to occur [he] would be in extreme danger." Id. The self-serving, conclusory and hypothetical allegations made the basis of the instant complaint fail to demonstrate that Noe was "under imminent danger of serious physical injury" at the time he filed this complaint 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 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. 2 The requisite dismissals are indicated on the docket sheets maintained by this court in the referenced cases. 2 U.S.C. 1915(g)). The potential personal safety concerns presented by Noe are purely speculative. Based on the foregoing, the court concludes that Noe's motion for leave to proceed in forma pauperis is due to be denied and this case dismissed without prejudice as Noe failed to pay the requisite filing fee upon the 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 he initiates the suit."). CONCLUSION Accordingly, it is ORDERED that the motion for leave to proceed in forma pauperis filed by Woodburck Noe on July 23, 2009 (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 Noe's failure to pay the full filing fee upon the initiation of this case. It is further ORDERED that on or before August 10, 2009 the parties may file objections to the Recommendation. Any objections filed must specifically identify the findings in the 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 3 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 28th day of July, 2009. /s/Charles S. Coody CHARLES S. COODY UNITED STATES MAGISTRATE JUDGE 4

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