Lee v. Gipson et al (INMATE2)

Filing 3

ORDER AND RECOMMENDATION OF THE MAGISTRATE JUDGE: denying the 2 Motion for leave to proceed in forma pauperis; recommending that this case be DISMISSED without prejudice for Plaintiff's failure to pay the full filing fee upon the initiation of this case. Objections to R&R due by 10/5/2010. Signed by Honorable Wallace Capel, Jr on 9/22/2010. (br, )

-WC Lee v. Gipson et al (INMATE2)

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 LEE, #184 070, Plaintiff, v. M R S . GIPSON, et al., D e f e n d a n ts. _____________________________ * * * * * 2:10-CV-790-TMH (WO)

O R D E R AND RECOMMENDATION OF THE MAGISTRATE JUDGE O n September 20, 2010, Gregory Lee, an inmate incarcerated at the Easterling C o rre c tio n a l Facility located in Clio, Alabama, filed the instant civil rights complaint. Plaintiff requests leave to proceed in this action in forma pauperis. U n d e r 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 i m upon which relief may be granted, unless the prisoner is under imminent danger of s e rio u 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 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 rt 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 s u 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 :0 0 -C V -9 8 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). In this case, Plaintiff complains that Defendant Gipson subjected him to an u n p ro v o k e d assault on August 24, 2010. According to the complaint, Defendant Gipson s la p p e d Plaintiff in the face which caused his nose to bleed. (Doc. No. 1.) "General allegations that are not grounded in specific facts which indicate that serious p h ys ic a l injury is imminent are not sufficient to invoke the exception to § 1915(g)." Niebla v . Walton Correctional Inst., 2006 WL 2051307, *2 (N.D. Fla. July 20, 2006) (citing Martin v . Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). "The plaintiff must allege and provide s p e c if ic fact allegations of ongoing serious physical injury, or a pattern of misconduct e v id e n c in g the likelihood of imminent serious physical injury, and vague allegations of harm a n d unspecific references to injury are insufficient." Id. (citing Martin, supra, and White v. S ta te of Colorado, 157 F.3d 1226, 1231 (10th Cir. 1998) (internal quotations omitted).

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The court has carefully reviewed the claims presented in the instant action. Plaintiff's a lle g a tio n s in this case do not entitle him to avoid the bar of § 1915(g) because his claims do n o t allege nor in any way indicate that he was " under imminent danger of serious physical in ju ry" at the time he filed this cause of action as is required to meet the imminent danger e x c e p tio n to the application of 28 U.S.C. § 1915(g). Medberry v. Butler, 185 F.3d 1189 (11 th C ir. 1999). B a se d on the foregoing, the court concludes that Plaintiff's motion for leave to p ro c e e d in forma pauperis is due to be denied and this case dismissed without prejudice for Plaintiff's failure to pay the requisite $350.00 filing fee upon the initiation of this cause of a c t i o n . Dupree v. Palmer, 284 F.3d 1234, 1236 (11th 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."). II. CONCLUSION In light of the foregoing, it is ORDERED that the motion for leave to proceed in forma pauperis filed by Plaintiff o n September 20, 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.

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It is further O R D E R E D that the parties are DIRECTED to file any objections to the said R e c o m m e n d a tio n on or before October 5, 2010. Any objections filed must specifically id e n tif y the findings in the Magistrate Judge's Recommendation to which a party objects. Frivolous, conclusive or general objections will not be considered by the District Court. The p a rtie s are advised that this 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 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 f in d in g s in the report accepted or adopted by the District Court except upon grounds of plain e rro 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 (11th Cir. 1982). See also Bonner v. City of P ric h a r d , 661 F.2d 1206 (11th Cir. 1981) (en banc), adopting as binding precedent all of the d e c is 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 22 n d day of September 2010.

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

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