Lee v. Scott et al (INMATE 2)
ORDER AND RECOMMENDATION OF THE MAGISTRATE JUDGE: It is ORDERED that the 2 Motion for Leave to Proceed in forma pauperis filed by Plaintiff 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. Objections to R&R due by 4/19/2012. Signed by Honorable Judge Wallace Capel, Jr. on 4/5/2012. (dmn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
GREGORY KENNETH LEE, #184 070, )
) CIVIL ACTION NO.: 2:12-CV-281-TMH
MS. STEPHANIE SCOTT, et al.,
ORDER AND RECOMMENDATION OF THE MAGISTRATE JUDGE
Plaintiff, an inmate in the custody of the Alabama Department of Corrections, filed
an application for leave to proceed in forma pauperis on March 28, 2012. See 28 U.S.C. §
1915(a). Under the provisions of 28 U.S.C. § 1915, 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 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."
Court records establish that Plaintiff, while incarcerated or detained, has on at least
three occasions had civil actions and/or appeals dismissed as frivolous, as 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 cases on which the court relies in
finding a violation of § 1915(g) are as follows: (1) Lee v. Haley, et al., Civil Action No.
2:00-CV-985-MHT (M.D. Ala. 2000), (2) Lee v. Haley, et al., Civil Action No. 2:02-CV1343-WHA (M.D. Ala. 2003), and (3) Lee v. Holt, et al., Civil Action No. 2:03-CV-1055-ID
(M.D. Ala. 2003)
“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
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
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.”).
In light of the foregoing, it is
ORDERED that the motion for leave to proceed in forma pauperis filed by Plaintiff
(Doc. No. 2) 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
It is further
ORDERED that the parties may file objections to the Recommendation on or before
April 19, 2012. Any objections 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 recommendations in the
Magistrate Judge's report shall bar the party from a de novo determination by the District
Court of issues covered in the report and shall bar the party from attacking on appeal factual
findings in the report 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 5th day of April 2012.
/s/ Wallace Capel, Jr.
WALLACE CAPEL, JR.
UNITED STATES MAGISTRATE JUDGE
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