Brinson v. Curley (INMATE 2)

Filing 21

ORDER DENYING 2 motion for leave to Proceed Without Prepayment of Fees and Affidavit; REPORT AND 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; re 1 Inmate 1983 Complaint filed by Alexander Brinson, Objections to R&R due by 10/22/2013. Signed by Honorable Judge Terry F. Moorer on 10/7/13. (djy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
ALEXANDER BRINSON,
Plaintiff,
v.
DR. CURLEY,
Defendant.

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) CIVIL ACTION NO. 2:13-CV-635-TMH
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[WO]
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)

ORDER AND RECOMMENDATION OF THE MAGISTRATE JUDGE
I. INTRODUCTION
This civil action is before the court on a 42 U.S.C. § 1983 complaint filed by
Alexander Brinson [“Brinson”], an inmate currently incarcerated at the Montgomery City Jail
located in Montgomery, Alabama. In the present complaint, Brinson complains that health
care personnel at the Montgomery City Jail, at the behest of Defendant Dr. Curly, have been
ordered not to screen his sick call requests and that the physician himself denied Plaintiff
medical treatment from February 1, 2013 through September 3, 2013 for his complaints of
back and neck pain and a foot injury suffered on July 8, 2013. Plaintiff’s Complaint - Court
Doc. No. 1 at 3; Plaintiff's Amendment to the Complaint - Court Doc. No. 13.

II. DISCUSSION
Upon initiation of this case, Brinson filed a motion for leave to proceed in forma
pauperis pursuant to the provisions of 28 U.S.C. § 1915(a). Application to Proceed Without

Prepayment of Fees - Court Doc. No. 2. However, 28 U.S.C. § 1915(g) directs that a
prisoner is not allowed to bring a civil action or proceed on appeal in forma pauperis and
requires payment of the requisite filing fee upon initiation of the suit if the inmate “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 danger of serious physical injury.”1 The records of this
court establish that Brinson, while incarcerated or detained, has on at least four occasions had
civil actions dismissed as frivolous, malicious, for failure to state a claim and/or for asserting
claims against defendants immune from suit pursuant to the provisions of 28 U.S.C. § 1915.
The actions on which this court relies in finding a § 1915(g) violation are: (1) Brinson v.
Frith, et al., Case No. 2:97-CV-1022-WHA-JLC (M.D. Ala. 1997), (2) Brinson v. Nix, et al.,
Case No.2:97-CV-906-WHA-JLC (M.D. Ala. 1997), (3) Brinson v. Jones, et al., Case No.
2:95-CV-1548-ID-JLC (M.D. Ala. 1996), and (4) Brinson v. Jones, et al., Civil Action No.
2:95-CV-1547-MHT-JLC (M.D. Ala. 1996).2
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In Rivera v. Allin, 144 F.3d 719, 731, cert. denied, 524 U.S. 978, 119 S.Ct. 27 (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.” In Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 921 (2007), the Supreme Court
abrogated Rivera but only to the extent it compelled an inmate to plead exhaustion of remedies in his complaint
as “failure to exhaust is an affirmative defense under the PLRA ... and inmates are not required to specifically
plead or demonstrate exhaustion in their complaints.” 549 U.S. at 216, 127 S.Ct. at 921.
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The requisite dismissals are indicated on the docket sheets maintained by this court in the referenced

cases.

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In the complaint now before the court for review, Brinson challenges the
constitutionality of medical treatment provided to him at the Montgomery City Jail from
February 1, 2013 through September 3, 2013.

Brinson has filed amendments to his

complaint wherein he adopts medical records in support of his allegations. Plaintiff’s
Amendment to the Complaint - Court Doc. No. 13, Exhs. A-I; Plaintiff’s Amendment to the
Complaint - Court Doc. No. 20 at Attachments. Several records submitted in support of the
complaint concern treatment Brinson received at the jail as well as a free world hospital on
July 8, 2013 for a foot injury. Id. The remaining records include: 1) a request submitted by
Brinson on June 19, 2013 for medical care due to back pain and a need for toenail and
fingernail clippers for which he refused treatment; 2) sick call request slips submitted July
31, 2013, August 24, 2013, September 5, 2013 and September 6, 2013, in which Brinson
complained of back and neck pain, the latter three in which he requested Tylenol or Motrin
for pain;3 3) a physician's note dated July 22, 2013, indicating an examination of Brinson's
foot injury, a change of dressing for the foot, issuance of a prescription for Tylenol for three
days, and "drug seeking;" and 4) various orders for Brinson prescribing him pain medication
and antacids. Id. With the exception of the sick call request for which Brinson refused
treatment, the remaining sick call slips submitted by Brinson reflect that medical personnel

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The court notes that Plaintiff signed his complaint on September 3, 2013. See Houston v. Lack,
487 U.S. 266, 271-272 (1988) (a pro se inmate’s complaint is deemed filed the date it is delivered to prison
officials for mailing).

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examined him in response to his complaints of pain in accordance with standard nursing
protocols. Plaintiff's medical records also reflect that he was prescribed pain medication on
July 8, 2013 for five days, on July 15, 2013 for five days, on July 22, 2013 for three days, and
on August 2, 2013 for four days. Id.
It bears repeating that in order to bring his claims in forma pauperis, Brinson must be
“under imminent danger of serious physical injury,” including at the time he filed his
complaint. See Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999). He must provide
the court with specific allegations of present imminent danger indicating that a serious
physical injury will result if his claims are not addressed. General assertions are insufficient.
See Skillern v. Paul, 202 Fed.Appx. 343, 344 (11th Cir. 2006) (finding where appellant
merely alleged that he was not receiving his heart medication, without a description of his
condition, and never alleged that he suffered any physical injury, the “imminent danger”
exception was not met) (unpublished). Additionally, the law is clear that past harm does not
satisfy § 1915(g)'s exception that a plaintiff be “under imminent danger of serious physical
injury.” Brown v. Johnson, 387 F.3d 1344, 1349 (11th Cir. 2004) (“a prisoner must allege a
present imminent danger, as opposed to a past danger, to proceed under section 1915(g)....”);
Medberry, 185 F.3d at 1193 (“a prisoner's allegation that he faced imminent danger sometime
in the past is . . . insufficient”); Adbul–Akabar v. McKelvie, 239 F.3d 307, 315 (3 rd Cir.
2001) (“By using the term ‘imminent,’ Congress indicated that it wanted to include a safety

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valve for the ‘three strikes' rule to prevent impending harms, not those harms that had already
occurred.”). Thus, in order to satisfy the exception to § 1915(g), Brinson “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[.]” Medberry, 185
F.3d at 1193.
The medical records contained in the amendments to the complaint demonstrate that
Brinson has the right to request medical treatment at the Montgomery City Jail, and it is clear
he routinely seeks and receives treatment for his medical complaints. There is nothing in the
medical records submitted by Brinson in support of his complaint that reflect that his access
to medical personnel at the jail is impeded, discouraged, or denied. The course of medical
treatment undertaken by jail medical personnel, however, is not governed by Brinson’s mere
request or desire for treatment, but rather, is provided based on the assessment of his
condition by the attending health care professional(s).
After thorough review of the complaint and the medical records contained in the
amendments to the complaint, it is clear the claims now before this court do not entitle
Brinson to circumvent the directives of § 1915(g) because the complaint and amendments
thereto fail to establish that Brinson was under “imminent danger of serious physical injury”
at the time he filed this cause of action as is required to meet the exception allowing
circumvention of the directives contained in 28 U.S.C.§ 1915(g). Medberry, 185 F.3d at

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1193; Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002) (The imminent danger exception
is available only “[w]hen a threat or prison condition is real and proximate, and when the
potential consequence is ‘serious physical injury....’”).
Based on the foregoing, the court concludes that Brinson’s motion for leave to
proceed in forma pauperis is due to be denied and this case dismissed without prejudice as
Brinson failed to pay the requisite filing fee upon initiation of this case. 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.”).

III. CONCLUSION
Accordingly, it is
ORDERED that the motion for leave to proceed in forma pauperis filed by Plaintiff
(Court Doc. No. 2) is DENIED.
Additionally, 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

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ORDERED that on or before October 22, 2013 Plaintiff may file an objection to the
Recommendation.

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 addressed in the Recommendation and shall bar the party from
attacking on appeal the factual findings contained 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 (11 th 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 7th st day of October 2013.

/s/Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE

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