Walker v. Reese et al (INMATE2)

Filing 4

ORDER denying 3 motion for leave to Proceed in forma pauperis; REPORT AND RECOMMENDATIONS of the Mag 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 9/10/2009. Signed by Honorable Wallace Capel, Jr on 8/28/09. (djy, )

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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 _____________________________ E A R N E S T LEE WALKER, JR., # 2 5 5 719 P l a in tif f , v. EUGENE REESE, et al., D e f e n d a n ts . _____________________________ * * * * * 2:09-CV-788-ID (WO) ORDER AND RECOMMENDATION OF THE MAGISTRATE JUDGE O n August 26, 2009, Plaintiff, a state inmate incarcerated at the Bullock Correctional F a c ility located 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 as , 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 D IS C U S S IO N The undersigned takes judicial notice of federal court records 2 which establish that P la in tif f , while incarcerated or detained, has on at least three occasions had civil actions a n d /o r appeals dismissed as frivolous, malicious, for failure to state a claim and/or for a ss e rtin g claims against defendants who were immune from suit pursuant to the provisions o f 28 U.S.C. 1915. The cases on which the court relies in finding a violation of 1915(g) inclu d e: (1) Walker v. Bryant, et al., Civil Action No. 2:05-CV-168-MEF (M.D. Ala. 2005); (2) Walker v. Bryant, et al., Civil Action No. 2:05-CV-346-MEF (M.D. Ala. 2005); and (3) W a lk e r v. Smith, et al., Civil Action No. 2:07-CV-719-WKW (M.D. Ala. 2007). T h e court has carefully reviewed the claims presented in the instant action. Even c o n stru in g all allegations in favor of Plaintiff, his claims in this complaint do not entitle him to avoid the bar of 1915(g) because they do not allege nor in any way indicate that he was " under imminent danger of serious physical injury" at the time he filed this cause of action a s is required to meet the imminent danger exception to the application of 28 U.S.C. 1 9 1 5 (g ). Medberry v. Butler, 185 F.3d 1189 (11 th Cir. 1999). See Niebla v. Walton C o r r e c tio n a l Inst., 2006 WL 2051307, *2 (N.D.Fla. July 20, 2006) (citing Martin v. Shelton, 3 1 9 F.3d 1048, 1050 (8 th Cir. 2003) ("General allegations that are not grounded in specific f a cts which indicate that serious physical injury is imminent are not sufficient to invoke the e x c e p tio n to 1915(g)."). 2 Available at http://pacer.uspci.uscourts.gov/. -2- " T h e plaintiff must allege and provide specific fact allegations of ongoing serious p h ys ic a l injury, or a pattern of misconduct evidencing the likelihood of imminent serious p h ysical injury, and vague allegations of harm and unspecific references to injury are in s u f f ic ie n t." Id. (citing Martin, supra, and White v. State of Colorado, 157 F.3d 1226, 1231 (1 0 th Cir. 1998) (internal quotations omitted). The "imminent danger" exception is available " f o r genuine emergencies," where "time is pressing" and "a threat . . . is real and p ro x im a te ." L e w is v. Sullivan, 279 F.3d 526, 531 (7 th Cir. 2002). In this case, Plaintiff's d is p le a su re with the course of his state court criminal proceedings is not the type of serious injury that has been recognized by the courts as entitling him to avoid the bar of 1915(g). S e e , e.g., Brown v. Johnson, 387 F.3d 1344, 1349 (11 th Cir. 2004). 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 1915(g)" because the prisoner "must pay the filing fee at the time he initiates the suit."). 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 filed by Plaintiff -3- o n August 26, 2009 (Doc. No. 3) 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 September 10, 2009. Any objections filed must specifically identify the findings in th e Magistrate 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 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 (5 th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 3 3 (11 th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11 th 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 28 th day of August 2009. -4- /s/ Wallace Capel, Jr WALLACE CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE -5-

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