Lee v. Nettles et al (INMATE 2)

Filing 3

ORDER DENYING 2 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 7/28/2010. Signed by Honorable Wallace Capel, Jr on 7/14/10. (djy, )

Lee v. Nettles et al (INMATE 2)

Doc. 3

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION _____________________________ G R E G O R Y K. LEE, #184 070 P l a in tif f , v. C A P T A IN NETTLES, et al., D e f e n d a n ts . _____________________________ * * * * * 2:10-CV-585-ID (WO)

O R D E R AND RECOMMENDATION OF THE MAGISTRATE JUDGE P la in tif f , an inmate in the custody of the Alabama Department of Corrections, filed a n application for leave to proceed in forma pauperis on July 8, 2010. See 28 U.S.C. § 1 9 1 5 (a ). Under the provisions of 28 U.S.C. § 1915, a prisoner is not allowed to bring a civil a c tio n or proceed on appeal in forma pauperis if he "has, on 3 or more occasions, while in c a rc e ra te d or detained in any facility, brought an action or appeal in a court of the United S ta te s that was dismissed on the grounds that it is frivolous, malicious, or fails to state a c la im upon which relief may be granted, unless the prisoner is under imminent danger of seriou s physical injury." 1 28 U.S.C. § 1915(g).

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."

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I . DISCUSSION C o u r t records establish that Plaintiff, while incarcerated or detained, has on at least th re e occasions had civil actions and/or appeals dismissed as frivolous, as malicious, for f a ilu re to state a claim and/or for asserting claims against defendants who were immune from su it pursuant to the provisions of 28 U.S.C. § 1915. The cases on which the court relies in f in d i n g a violation of § 1915(g) are as follows: (1) Lee v. Haley, et al., Civil Action No. 2 :00 -C V -98 5 -M H T (M.D. Ala. 2000), (2) Lee v. Haley, et al., Civil Action No. 2:02-CV1 3 4 3 -W H A (M.D. Ala. 2003), and (3) Lee v. Holt, et al., Civil Action No. 2:03-CV-1055-ID (M .D . Ala. 2003) T h e court has carefully reviewed the claims presented in the instant action. Plaintiff c o m p la in s that on June 22, 2009, Defendants subjected him to a sexual assault and excessive f o rc e . Even construing all allegations in favor or Plaintiff, his claims in this case do not e n title him to avoid the bar of § 1915(g) because his claims do not allege nor in any way in d ic a te that he was " under imminent danger of serious physical injury" at the time he filed th is cause of action as is required to meet the imminent danger exception to the application o f 28 U.S.C. § 1915(g). Medberry v. Butler, 185 F.3d 1189 (11 th Cir. 1999). B a se d 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)

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(" [ 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."). 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 July 8, 2010 (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 O R D E R E D that the parties are DIRECTED to file any objections to the said R ec o m m en d atio n on or before July 28, 2010. Any objections filed must specifically identify th e findings in the Magistrate Judge's Recommendation to which a party objects. Frivolous, co n clus ive or general objections will not be considered by the District Court. The parties are a d v is e d that this Recommendation is not a final order of the court and, therefore, it is not a p p e a la b le . F a ilu re to file written objections to the proposed findings and recommendations in the M a g is tra te Judge's report shall bar the party from a de novo determination by the District C o u rt of issues covered in the report and shall bar the party from attacking on appeal factual

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f in d in g s in the report accepted or adopted by the District Court except upon grounds of plain e rr o r or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5 th Cir. 1982). See Stein v . Reynolds Securities, Inc., 667 F.2d 33 (11 th Cir. 1982). See also Bonner v. City of P r ic h a r d , 661 F.2d 1206 (11 th Cir. 1981, en banc), adopting as binding precedent all of the d e c i s io n s of the former Fifth Circuit handed down prior to the close of business on S e p te m b e r 30, 1981. D o n e , this 14 th day of July 2010.

/s / Wallace Capel, Jr. WALLACE CAPEL, JR. UNITED STATES MAGISTRATE JUDGE

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