Lee v. Darbouze et al (INMATE 2)

Filing 3

ORDER AND RECOMMENDATION OF THE MAGISTRATE JUDGE that the motion for leave to proceed in forma pauperis filed by Plaintiff 2 is DENIED; 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 5/14/2013. Signed by Honorable Judge Wallace Capel, Jr on 4/30/2013. (jg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
GREGORY KENNETH LEE,
#184 070,
Plaintiff,
v.
DR. JEAN DARBOUZE, et al.,
Defendants.

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) CIVIL ACTION NO.: 2:13-CV-287-TMH
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[WO]
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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 April 26, 2013. 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).

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 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
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).
The court has carefully reviewed the claims presented in the instant action. Even
construing all allegations in favor or Plaintiff, his claims in this case do not entitle him to
avoid the bar of § 1915(g) because his claims 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).
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
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§ 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
(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
case.
It is further
ORDERED that on or before May 14, 2013, the parties may file objections to the
Recommendation. 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 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 Sec., Inc., 667 F.2d 33
(11th Cir. 1982); see also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en
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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 30th day of April, 2013.

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

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