Johnson v. United States Postal Service et al (INMATE 3)

Filing 11

ORDER AND RECOMMENDATION OF THE MAGISTRATE JUDGE re 1 Inmate 1983 Complaint, filed by David Lamar Johnson. 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 Plaintiff's failure to pay the full filing fee upon the initiation of this case. Objections to R&R due by 8/22/2013. Signed by Honorable Judge Wallace Capel, Jr. on 8/9/2013. (dmn, )

Johnson v. United States Postal Service et al (INMATE 3)

Doc. 11

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
DAVID LAMAR JOHNSON,
Plaintiff,
v.
UNITED STATES POSTAL
SERVICE, et al.,
Defendants.

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Civil Action No. 2:12cv1032-TMH
(WO)

ORDER AND RECOMMENDATION OF THE MAGISTRATE JUDGE
On November 20, 2012, Plaintiff, an inmate incarcerated at the Easterling
Correctional Facility located in Clio, Alabama, filed the instant civil rights action. He
requests leave to proceed in this action in forma pauperis. 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.” 1

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.”

Dockets.Justia.com

I.

DISCUSSION

The undersigned takes judicial notice of federal court records,2 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 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 this court relies in finding a violation of § 1915(g)
include (1) Johnson v. Reno, et al., Civil Action No. 2:95cv1107-ID (M.D. Ala. 1995);
(complaint frivolous); (2) Johnson v. Giles, et al., Civil Action No. 2:09cv339-WKW (M.D.
Ala. 2009) (complaint frivolous); and (3) Johnson v. State of Alabama, et al., Civil Action
No. 1:10cv401-TMH (M.D. Ala. 2010) (complaint and appeal frivolous).3
Plaintiff brings this civil rights action against the United States Postal Service and
various officers and employees for the destruction of his property placed in the mail in
September 2011 while he was incarcerated at the Ventress Correctional Facility in Clayton,
Alabama. Plaintiff requests trial by jury and seeks monetary damages. Doc. No. 1.
This court has carefully reviewed the claims presented in the instant action. Even
construing all allegations in favor of Plaintiff, the claims in his complaint do not entitle him

2

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. App’x 800,
802 (11th Cir. 2010).
3

Available at http://pcl.uscourts.gov/.
2

to avoid the bar of 28 U.S.C. § 1915(g), because they do not allege or 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 application of § 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 should 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 November 20, 2012 (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

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case.
It is further
ORDERED that Plaintiff may file an objection to the Recommendation on or before
August 22, 2013.

Any objection filed must specifically identify the findings in the

Magistrate Judge’s Recommendation to which Plaintiff objects. Frivolous, conclusive or
general objections will not be considered by the District Court. Plaintiff is advised that this
Recommendation is not a final order of the court and, therefore, it is not appealable.
Failure to file a written objection 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 9th day of August, 2013.

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

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