Broadhead v. Palmer et al (INMATE 2)
Filing
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REPORT AND RECOMMENDATION of the Magistrate Jduge this case be DISMISSED without prejudice for plf's failure to pay the filing and administrative fees upon his initiation of this case ; ORDER DENYING 1 MOTION to Appoint Counsel; Objections to R&R due by 7/21/2016. Signed by Honorable Judge Terry F. Moorer on 7/7/16. (djy, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
JAMES BROADHEAD, #224 802,
Plaintiff,
v.
CORRECTIONAL OFFICER MILTON
PALMER, et al.,
Defendants.
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) CIVIL ACTION NO. 2:16-CV-529-MHT
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[WO]
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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 Bullock Correctional Facility in
Union Springs, 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.”
II. 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. Ala. 2010)
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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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(complaint frivolous); and (4) Broadhead v. Kirrire, et al., Case No. 4:10-CV-53-VEH-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
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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 and/or describing another use of excessive force against him but identifying
different dates, defendants and/or facilities where the alleged assault occurred. See Broadhead v. Halliam,
et al., Case No. 2:16-CV-433-WHA-TFM (case pending on a Recommendation addressing claims alleged
to have occurred at Bullock Correctional Facility in 2016); Broadhead v. Holcey, et al., Case No. 2:16-CV384-WHA-TFM (M.D. 2016); Broadhead v. Roders, et al., Case No. 2:16-CV-371-WHA-TFM; (M.D.
2016); Broadhead v. Baldwin, et al., Case No. 2:16-CV-336-WHA-WC (M.D. Ala. 2016); Broadhead v.
Roders, et al., Case No. 2:16-CV-321-WHA-WC (M.D. Ala. 2016); Broadhead v. Jenkins, et al., Case No.
2:16-CV-250-WHA-GMB (M.D. Ala. 2016); Broadhead v. Harris, et al., Case No. 2:16-CV-244-WHAGMB (M.D. Ala. 2016); Broadhead v. Battle, et al., Case No. 2:16-CV-219-WHA-GMB (M.D. Ala. 2016);
Broadhead v. Smith, et al., Case No. 2:16-CV-81-WHA-GMB (M.D. Ala. 2016); Broadhead v. Scott, et
al., Case No. 2:16-CV-17-WHA-GMB (M.D. Ala. 2016); Broadhead v. Gasdon, et al., Case No. 2:15-CV854-MHT-GMB (M.D. Ala. 2015); Broadhead v. Olds, et al., Case No. 2:15-CV-715-WKW-TFM (M.D.
Ala. 2015); Broadhead v. Miree, et al., Case No. 2:14-CV-677-MHT-TFM (M.D. Ala. 2014); Broadhead
v. Rogers, et al., Case No. 2:14-CV-676-MHT-TFM (M.D. Ala. 2014); Broadhead v. Miree, et al., Case
No. 2:14-CV-641-MHT-TFM (M.D. Ala. 2014); Broadhead v. Olds, et al., Case No. 2:14-CV-393-MEFTFM (M.D. Ala. 2014); Broadhead v. Olds, et al., Case No. 2:14-CV-367-MEF-TFM (M.D. Ala. 2014)
(incident in the preceding cases alleged to have occurred at either the Bullock or Donaldson Correctional
Facility on unidentified dates in 2016, 2015 or 2014.); Broadhead v. Babers et al., Case No. 2:14-CV-210MEF-TFM (M.D. Ala. 2014); Broadhead v. Babers et al., Case No. 2:14-CV-49-WHA-TFM (M.D. Ala.
2014) (incident in these two cases alleged to have occurred during a prior stint of confinement at Bullock
Correctional Facility). 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-SLB-RRA
(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-1152-WMA-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. 4:10CV-1028-AKK-RRA (N.D. Ala.); Broadhead v. Malone, et al., Case No. 4:10-CV-806-JHH-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-LSCRRA (N.D. Ala.); Broadhead v. Wise, et al., Case No. 4:10-CV-388-IPJ-RRA (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. 4:10CV-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-CV2512-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.,
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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) (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)
(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 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 as Broadhead failed to pay the requisite filing and administrative fees upon his
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).
III. 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.
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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It is
ORDERED that Plaintiff’s motion for appointment of counsel (Doc. # 1) is DENIED.
It is further
ORDERED that on or before July 22, 2016, 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
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 on this 7th day of July, 2016.
/s/Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE
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