Lee v. Smithart et al (INMATE 2)

Filing 23

ORDER AND RECOMMENDATION OF THE MAGISTRATE JUDGE: it is ORDERED that the 17 Motion for Leave to Proceed in forma pauperis is DENIED; RECOMMENDATION of the Magistrate 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 4/18/2012. Signed by Honorable Judge Charles S. Coody on 4/4/2012. (wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
RASHAD LEE, #213 823,
)
)
Plaintiff,
)
)
v.
) CIVIL ACTION NO. 2:11-CV-1078-WKW
)
[WO]
L.B. SMITHART, et al.,
)
)
Defendants.
)
ORDER AND RECOMMENDATION OF THE MAGISTRATE JUDGE
On March 7, 2012, Plaintiff, an inmate incarcerated at the Bibb Correctional Facility
located in Brent, Alabama, filed an application for leave to proceed in forma pauperis.1 See
28 U.S.C. § 1915(a). Pursuant to the directives of 28 U.S.C. § 1915(g), 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."2

1

Plaintiff originally filed the captioned action on December 16, 2011. He failed, however, to
either submit the requisite filing fee or submit a request to proceed in forma pauperis along with the
complaint. In accordance with the orders of the court, Plaintiff submitted a request to proceed in this
action in forma pauper on March 7, 2012.
2

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."

I. DISCUSSION
The undersigned takes judicial notice of federal court records3 which establish that
Plaintiff, while incarcerated or detained, has had on at least three occasions civil actions
and/or appeals dismissed as frivolous, malicious, for failure to state a claim, for asserting
claims against defendants who were immune from suit pursuant to the provisions of 28
U.S.C. § 1915, and/or counted as a strike for purposes of 28 U.S.C. § 1915(g). The cases on
which the court relies in finding a violation of § 1915(g) include: (1) Lee v. Jernigan, et al.,
Civil Action No. 2:06-CV-134-MHT (M.D. Ala. 2006); (2) Lee v. Mills, et al., Civil Action
No. 2:09-CV-602-WHA (M.D. Ala. 2010); (3) Lee v. Myers, et al., Civil Action No. 1:10CV-396-KD) (S.D. Ala. 2011); and (4) Lee v. Myers, et al., Civil Action No. 1:10-CV-661KD (S.D. Ala, 2011).4
“General allegations that are not grounded in specific facts which indicate that serious
physical 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
specific fact allegations of ongoing serious physical injury, or a pattern of misconduct
evidencing the likelihood of imminent serious physical injury, and vague allegations of harm

3

In evaluating whether Plaintiff has three strikes, the court may properly take judicial notice of
pleadings and orders in a previous case when the orders are public records and are “not subject to
reasonable dispute because they [are] capable of accurate and ready determination by resort to sources
whose accuracy could not reasonably be questioned.” Horne v. Potter, 392 Fed. Appx. 800, 802 (11th Cir.
2010).
4

Available at http://pcl.uscourts.gov/.

and unspecific references to injury are insufficient.” Id. (citing Martin, supra, and White v.
State of Colorado, 157 F.3d 1226, 1231 (10th Cir. 1998) (internal quotations omitted). The
“imminent danger” exception is available “for genuine emergencies,” where “time is
pressing” and “a threat . . . is real and proximate.”Lewis v. Sullivan, 279 F.3d 526, 531 (7th
Cir. 2002)
The court has carefully reviewed the claims presented in the instant action. Even
construing 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
as is required to meet the imminent danger exception to the application of 28 U.S.C. §
1915(g). Medberry v. Butler, 185 F.3d 1189 (11th Cir. 1999). See Abdul-Akbar v. McKelvie,
239 F.3d 307, 315 (3rd Cir. 2001) (“By using the term ‘imminent,’ Congress indicated that
it wanted to include a safety valve for the ‘three strikes’ rule to prevent impending harms, not
those harms that had already occurred.”).
Based on the foregoing, the court concludes that Plaintiff's motion for leave to
proceed 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
action. 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.”).

II. CONCLUSION
In light of the foregoing, it is
ORDERED that the motion for leave to proceed in forma pauperis filed by Plaintiff
on March 7, 2012 (Doc. No. 17) is DENIED.
It is the RECOMMENDATION of the Magistrate Judge that this case be DISMISSED
without prejudice for Plaintiff’s failure to pay the full filing fee upon the initiation of this
case.
It is further
ORDERED that on or before April 18, 2012, the parties may file any objection to
this Recommendation. Any objection filed must specifically identify 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 parties are advised that
this Recommendation is not a final order of the court and, therefore, it is not appealable.
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 4th day of April, 2012.

/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE