Johnson et al v. Marshall et al (INMATE1)

Filing 4

ORDER AND RECOMMENDATION OF THE MAGISTRATE JUDGE; ORDER denying 2 Application to Proceed Without Prepayment of Fees and Affidavit; RECOMMENDATION of the Magistrate Judge that this case be dismissed without prejudice for the plf's failure to pay the full filing fee upon the initiation of this case; Objections to R&R due by 12/4/2009. Signed by Honorable Terry F. Moorer on 11/19/2009. (wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION ALVIN JAMES JOHNSON, Plaintiff, v. ) ) ) ) ) ) ) ) ) )

CASE NO. 2:09-CV-1044-MEF [WO]

D. T. MARSHALL, et al., Defendants.

ORDER AND RECOMMENDATION OF THE MAGISTRATE JUDGE This civil action is before the court on a 42 U.S.C. § 1983 complaint filed by Alvin James Johnson ["Johnson"], a county inmate and frequent federal litigant. In the

complaint, Johnson complains that officials at the Montgomery County Detention Facility allow him to list only two names on his visitation card with changes allowed each month. Plaintiff's Complaint - Court Doc. No. 1 at 4. Upon initiation of this case, Johnson 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, 28 U.S.C. § 1915(g) directs that 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 The records of this court establish that Johnson, 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) Johnson v. Reese, et al., Case No. 2:08-CV-830TMH-TFM (M.D. Ala. 2008), (2) Johnson v. State of Alabama, et al., Case No.2:09-CV98-WHA-TFM (M.D. Ala. 2009), and (3) Johnson v. Brooks, et al., Case No. 2:09-CV385-TMH-TFM (M.D. Ala. 2009). In the instant complaint, Johnson challenges the constitutionality of the jail policy which requires that he place only two names on his visitation list - names which can be changed once a month. After thorough review of the claim presented by Johnson, it is clear that such claim does not entitle him to circumvent the directives of § 1915(g) as the allegations made the basis of the pending complaint fail to demonstrate that Johnson was "under imminent danger of serious physical injury" at the time he filed this cause of action

In Rivera v. Allin, 144 F.3d 719, 731, cert. denied, 524 U.S. 978, 119 S.Ct. 27 (1998), the Court d e te rm in e d that the "three strikes" provision of 28 U.S.C. § 1915(g), which requires frequent filer prisoner in d ig e n ts to prepay the entire filing fee before federal courts may consider their cases and appeals, "does not vio la te 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 in c o rp o ra te d through the Fifth Amendment." In Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 921 (2007), the S u p r em e 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 re q u ire d to specifically plead or demonstrate exhaustion in their complaints." 549 U.S. at 216, 127 S.Ct. at 921.

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as is required to meet the imminent danger exception to 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 of serious physical injury" to evade application of the "three strikes" provision of 28 U.S.C. § 1915(g)); Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002) (The imminent danger exception is available only "[w]hen a threat or prison condition is real and proximate, and when the potential consequence is `serious physical injury....'"). Based on the foregoing, the court concludes that Johnson's motion for leave to proceed in forma pauperis is due to be denied and this case dismissed without prejudice as Johnson failed to pay the requisite filing fee upon initiation of this case. 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 Alvin James Johnson (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 full filing fee upon the initiation of this case.
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It is further ORDERED that on or before December 4, 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 a pp ea la bl e. 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 19th day of November, 2009.

/s/Terry F. Moorer TERRY F. MOORER UNITED STATES MAGISTRATE JUDGE
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