Crouch v. Riley et al (INMATE 2)

Filing 3

ORDER AND RECOMMENDATION OF THE MAGISTRATE JUDGE directing that it is ORDERED that the 2 Motion for leave to proceed in forma pauperis is DENIED; it is the RECOMMENDATION of the Magistrate Judge that this case be DISMISSED without prejudice for Pla intiff's failure to pay the full filing fee upon initiation of this case; it is further ORDERED that the parties shall file any objections to this Recommendation on or before November 12, 2010, as further set out. Signed by Honorable Charles S. Coody on 10/29/10. (scn, )

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-CSC Crouch v. Riley 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 _____________________________ D O U G L A S CROUCH, #183100 P l a in tif f , v. BOB RILEY, et al., D e f e n d a n ts . _____________________________ * * * * * 2:10-CV-781-ID (WO) ORDER AND RECOMMENDATION OF THE MAGISTRATE JUDGE O n September 17, 2010, Plaintiff, a state inmate incarcerated at the Elmore C o rre c tio n a l Facility located in Elmore, Alabama, filed an application for leave to proceed in the captioned matter in forma pauperis. See 28 U.S.C. 1915(a). Pursuant to the d ire c tiv e s of 28 U.S.C. 1915(g), a prisoner is not allowed to bring a civil action or proceed o n appeal in forma pauperis if he "has, on 3 or more occasions, while incarcerated or d e ta in e d in any facility, brought an action or appeal in a court of the United States that was d is m is s e d on the grounds that it is frivolous, malicious, or fails to state a claim upon which re lie f may be granted, unless the prisoner is under imminent danger of serious physical in ju ry." 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 Dockets.Justia.com D IS C U S S IO N 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: (1) Crouch v. Crouch, et al., Civil Action No. 2:95-CV5 3 8 -W H A (M.D. Ala. 1995);2 (2) Crouch v. Crouch, et al., Civil Action No. 2:95-CV-1435W H A (M.D. Ala. 1995);3 and (3) Crouch v. Haley, et al., Civil Action No. 2:00-CV-1432W H A (M.D. Ala. 2001).4 T h e court has carefully reviewed the claims presented in the complaint wherein P lain tiff seeks to challenge the constitutionality of the Alabama Community Notification Act. P la in tif f 's allegations in the instant action do not entitle him to avoid the bar of 1915(g) b e c au s e his claims do not allege nor in any way indicate that he was " under imminent danger o f serious physical injury" at the time he filed this cause of action as is required to meet the im m in e n t danger exception to the application of 28 U.S.C. 1915(g). Medberry v. Butler, 1 8 5 F.3d 1189 (11 th Cir. 1999). Based on the foregoing, the court concludes that Plaintiff's motion for leave to 2 Dismissed pursuant to the provisions of former 28 U.S.C. 1915(d). Dismissed pursuant to the provisions of former 28 U.S.C. 1915(d). Dismissed pursuant to the provisions of 28 U.S.C. 1915(e)(2)(B)(i). 3 4 -2- 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 o n September 17, 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 ORDERED that the parties shall file any objections to this Recommendation on or b e f o re November 12, 2010. 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 -3- 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 29th day of October, 2010. /s/Charles S. Coody CHARLES S. COODY U N IT E D STATES MAGISTRATE JUDGE -4-

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