Broadhead v. Gasdon et al (INMATE 2)

Filing 2

ORDER AND RECOMMENDATION OF THE MAGISTRATE JUDGE re 1 Inmate 1983 Complaint filed by James M. Broadhead, that this case be DISMISSED without prejudice for Plaintiff's failure to pay the filing and administrative fees upon his initiation of this case. It is ORDERED that Plaintiff's 1 MOTION for Appointment of Counsel is DENIED. Objections to R&R due by 12/3/2015. Signed by Honorable Judge Gray Michael Borden on 11/19/2015. (dmn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
JAMES BROADHEAD, #224 802,

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Plaintiff,
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v.
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CORRECTIONAL OFFICER R. GASDON, )
et al.,
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Defendants.
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CIVIL ACTION NO. 2:15-CV-854-MHT
[WO]

ORDER AND RECOMMENDATION OF THE MAGISTRATE JUDGE
I. INTRODUCTION
This case is before the court on a 42 U.S.C. § 1983 complaint filed by James M.
Broadhead [“Broadhead”], a frequent federal litigant, incarcerated at the Donaldson Correctional
Facility in Bessemer, Alabama. Under 28 U.S.C. § 1915, a prisoner may not 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).

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In Rivera v. Allin, 144 F.3d 719, 731 (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, 216 (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.”

I. DISCUSSION
Upon initiating this case Broadhead did not pay the $350.00 filing fee and $50.00
administrative fee nor did he apply for leave to proceed in forma pauperis. In cases with these
deficiencies, the usual practice of this court is to enter an order advising Plaintiff he must pay the
full filing fee and concomitant administrative fee or apply for leave to proceed in forma
pauperis. Under the directives of 28 U.S.C. § 1915(g), however, a prisoner may not 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.” Consequently, an inmate in violation of the “three strikes” provision of §
1915(g) who is not in “imminent danger” of suffering a serious physical injury must pay the
filing fee upon initiation of his case. Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002).
Federal court records establish that Broadhead, while incarcerated or detained, has on at
least four occasions had civil actions dismissed under 28 U.S.C. § 1915 as frivolous, malicious,
for failure to state a claim, and/or for asserting claims against defendants immune from suit.2
The actions on which this court relies in finding a § 1915(g) violation by Broadhead are: (1)
Broadhead v. Dozier, et al., Case No. 2:11-CV-489-MEF-TFM (M.D. Ala. 2012) (complaint
malicious); (2) Broadhead v. O’Brian, et al., Case No. 4:10-CV-475-JHH-RRA (N.D. Ala. 2010)
(complaint frivolous); (3) Broadhead v. Hopkins, et al., Case No. 4:10-CV-439-LSC-RRA (N.D.

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This court may take judicial notice of its own records and the records of other federal courts. Nguyen v.
United States, 556 F.3d 1244, 1259 n.7 (11th Cir. 2009); United States v. Rey, 811 F.2d 1453, 1457 n.5
(11th Cir. 1987); United States v. Glover, 179 F.3d 1300, 1302 n.5 (11th Cir. 1999).

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Ala. 2010) (complaint frivolous); and (4) Broadhead v. Kirrire, et al., Case No. 4:10-CV-53VEH-RRA (N.D. Ala. 2010) (complaint frivolous).
Upon review of the present complaint and the numerous other civil actions filed by
Broadhead in this and the other federal courts of this state alleging a similar factual basis for
relief,3 the court finds Broadhead fails to demonstrate that he “is under imminent danger of
serious physical injury” as required to meet the exception allowing circumvention of the
directives in 28 U.S.C. § 1915(g). Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999)
(holding that a prisoner who has filed three or more frivolous lawsuits or appeals and seeks to
proceed in forma pauperis must present facts sufficient to demonstrate “imminent danger” to
circumvent application of the “three strikes” provision of 28 U.S.C. § 1915(g)); Lewis v.
Sullivan, 279 F.3d 526, 531 (7th Cir. 2002) (noting that 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....’”). Thus, even if the court provided Broadhead an

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A review of the records for this court and the other federal courts of this state show Broadhead has filed
numerous cases alleging similar claims of excessive force and asserting injuries similar to those set forth
in this complaint. See Broadhead v. Hicks, et al., Case No. 2:12-CV-2369-JHH-RRA (N.D. Ala.);
Broadhead v. Price, et al., Case No. 2:12-CV-2193-IPJ-RRA (N.D. Ala.); Broadhead v. Byres, et al.,
Case No. 4:12-CV-644-KOB-RRA (N.D. Ala.); Broadhead v. Baker, et al., Case No. 4:12-CV-585-SLBRRA (N.D. Ala.); Broadhead v. Norris, et al., Case No. 2:11-CV-490-MEF-TFM (M.D. Ala.);
Broadhead v. Dozier, et al., Case No. 2:11-CV-489-MEF-TFM (M.D. Ala.); Broadhead v. Woodard, et
al., Case No. 2:11-CV-341-MEF-TFM (M.D. Ala.); Broadhead v. Scott, et al., Case No. 4:10-CV-1152WMA-RRA (N.D. Ala.); Broadhead v. Carter, et al., Case No. 4:10-CV-1142-AKK-RRA (N.D. Ala.);
Broadhead v. Miles, et al., Case No. 4:10-CV-1141-JHH-RRA (N.D. Ala.); Broadhead v. Scott, et al.,
Case No. 4:10-CV-1028-AKK-RRA (N.D. Ala.); Broadhead v. Malone, et al., Case No. 4:10-CV-806JHH-RRA (N.D. Ala.); Broadhead v. McKay, et al., Case No. 4:10-CV-751-RRA (N.D. Ala.);
Broadhead v. O'Brian, et al., Case No. 4:10-CV-475-JHH-RRA (N.D. Ala.); Broadhead v. Hopkins, et
al., Case No. 4:10-CV-439-LSC-RRA (N.D. Ala.); Broadhead v. Wise, et al., Case No. 4:10-CV-388-IPJRRA (N.D. Ala.); Broadhead v. Brown, et al., Case No. 4:10-CV-350-VEH-RRA (N.D. Ala.); Broadhead
v. Swain, et al., Case No. 4:10-CV-113-AKK-RRA (N.D. Ala.); Broadhead v. Richburg, et al., Case No.
4:10-CV-54-IPJ-RRA (N.D. Ala.); Broadhead v. Kirrire, et al., Case No. 4:10-CV-53-VEH-RRA (N.D.
Ala.); Broadhead v. Swain, et al., Case No. 4:09-CV-2606-SLB-RRA (N.D. Ala.); Broadhead v.
Northcutt, et al., Case No. 4:09-CV-2512-SLB-RRA (N.D. Ala.); Broadhead v. Michael, et al., Case No.
4:09-CV-2473-VEH-RRA (N.D. Ala.); Broadhead v. Griggs, et al., Case No. 1:10-CV-241-CG-C (S.D.
Ala.); Broadhead v. Heinz, et al., Case No. 1:10-CV-129-KD-B (S.D. Ala.); and Broadhead v. Mixon, et
al., Case No. 1:10-CV-12-WS-C (S.D. Ala.).
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opportunity to seek in forma pauperis status, and he then sought such treatment, he could not
proceed in forma pauperis due to his violation of the “three strikes” provision of 28 U.S.C. §
1915(g).
Based on the foregoing, the court concludes this case is due to be summarily dismissed
without prejudice due to Broadhead’s failure to pay the requisite filing and administrative fees
upon initiation of this case. Dupree, 284 F.3d at 1236 (emphasis in original) (“[T]he proper
procedure is for the district court to dismiss the complaint without prejudice when [an inmate is
not entitled] to proceed in forma pauperis [due] to [violation of] the provisions of § 1915(g)”
because the prisoner “must pay the filing fee at the time he initiates the suit.”); Vanderberg v.
Donaldson, 259 F.3d 1321, 1324 (11th Cir. 2001) (same).
II. CONCLUSION
Accordingly, it is the RECOMMENDATION of the Magistrate Judge this case be
DISMISSED without prejudice for Plaintiff’s failure to pay the filing and administrative fees
upon his initiation of this case.
It is ORDERED that Plaintiff’s motion for appointment of counsel (Doc. 1) is DENIED.
It is further ORDERED that on or before December 3, 2015, Plaintiff may file an
objection to the Recommendation. Any objection filed must specifically identify the factual
findings and legal conclusions in the Magistrate Judge’s Recommendation to which Plaintiff
objects. Frivolous, conclusive or general objections will not be considered by the District Court.
This Recommendation is not a final order and, therefore, it is not appealable.
Failure to file a written objection to the proposed findings and recommendations in the
Magistrate Judge’s report shall bar a party from a de novo determination by the District Court of
factual findings and legal issues covered in the report and shall “waive the right to challenge on

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appeal the district court’s order based on unobjected-to factual and legal conclusions” except
upon grounds of plain error if necessary in the interests of justice. 11th Cir. R. 3-1; see
Resolution Trust Co. v. Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993); Henley
v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989).
DONE this 19th day of November, 2015.

/s/
Gray M. Borden
UNITED STATES MAGISTRATE JUDGE

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