Henry v. Strange et al (INMATE 1)

Filing 5

ORDERED as follows: 1) Plf Aloysius Thaddeus Henry's 4 objection is OVERRULED; 2) The 3 Recommendation of the Magistrate Judge is ADOPTED; 3) Plf's 2 motion for leave to proceed in forma pauperis is DENIED; and 4) This case is DISMISSED without prejudice for Plf's failure to pay the filing and administrative fees upon initiation of this case. Signed by Chief Judge William Keith Watkins on 11/30/2016. (wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
ALOYSIUS THADDEUS
HENRY, #152683,
Plaintiff,
v.
TODD STRANGE, N.T. BRUCE,
CHARLES PRICE, DEBRA
HOLLIS, and ANNA COOK,
Defendants.

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CASE NO. 2:16-CV-872-WKW
[WO]

ORDER
Before the court is the Recommendation of the Magistrate Judge. (Doc. # 3.)
On November 14, 2016,1 Plaintiff Aloysius Thaddeus Henry filed objections to the
Recommendation. (Doc. # 4). The court has conducted an independent and de novo
review of those portions of the Recommendation to which objection is made. See
28 U.S.C. § 636(b).

1

Although the objection was received by the clerk of court on November 28, 2016—six
days after the deadline for objections (see Doc. # 3)—Mr. Henry is entitled to the benefit of “the
prison mailbox rule, under which a pro se prisoner’s court filing is deemed filed on the date it is
delivered to prison authorities for mailing.” Daniels v. United States, 809 F.3d 588, 589 (11th Cir.
2015) (citation and internal quotation marks omitted). Mr. Henry signed his objection on
November 14, 2016 (Doc. # 4 at 6), and the undersigned “assume[s], absent evidence to the
contrary, that a prisoner delivered a filing to prison authorities on the date that he signed it.”
Daniels, 809 F.3d at 589 (alteration, citation, and internal quotation marks omitted). Therefore,
Mr. Henry’s objection is timely.

In his objection, Mr. Henry takes three tacks: First, he argues that he has not
had at least three civil actions dismissed under 28 U.S.C. § 1915 as frivolous,
malicious, or for failure to state a claim; therefore, he claims, he has not run afoul of
§ 1915(g). (See Doc. # 4 ¶¶ 2–3, 5.) The Magistrate Judge identified three such
cases, thereby justifying denial of leave to proceed in forma pauperis under
§ 1915(g). (See Doc. # 3 at 2.)
Second, Mr. Henry asserts that he is under imminent danger of serious
physical injury, such that subsection (g) does not require him to pay the filing fee
upon initiation of this case. (See Doc. # 4 ¶¶ 4–5.) He purports to have been “jumped
on” and otherwise assaulted by prison officials, and claims that this history of assault
shows a “risk of future injury . . . sufficient to invoke the imminent danger
exception.” (Doc. # 4 ¶ 5.2) Even accepting these statements as true, they do not
justify application of the exception because there is no indication that Mr. Henry
remains in imminent danger. The most recent altercation described in the objection
happened on or around May 3, 2016 (Doc. # 4 ¶ 3), and “[a]n allegation of past
imminent danger will not invoke the ‘imminent danger’ exception.” Owens v.
Schwartz, 519 F. App’x 992, 994 (11th Cir. 2013) (citing Medberry v. Butler, 185

2

Mr. Henry’s objection contains two paragraphs numbered five, one on page three and one
on page four. (Doc. # 4 at 3–4.) This citation refers to the paragraph on page four of Mr. Henry’s
filing.
2

F.3d 1189, 1193 (11th Cir. 1999). Accordingly, § 1915(g) bars Mr. Henry from
proceeding in forma pauperis.
Finally, Mr. Henry appears to argue the merits of his underlying claims. (See
Doc. # 4 ¶¶ 1, 7–8.) To be clear, neither this Order nor the Recommendation of the
Magistrate Judge hinges on whether Mr. Henry has stated a non-frivolous claim.
Rather, each results from Mr. Henry’s request for leave to proceed in forma
pauperis, in view of his three prior § 1915 dismissals and the absence of imminent
danger of serious physical injury. See Dupree v. Palmer, 284 F.3d 1234, 1236 (11th
Cir. 2002).
Accordingly, it is ORDERED as follows:
1.

Plaintiff Aloysius Thaddeus Henry’s objection (Doc. # 4) is

OVERRULED;
2.

The Recommendation of the Magistrate Judge (Doc. # 3) is

ADOPTED;
3.

Plaintiff’s motion for leave to proceed in forma pauperis (Doc. # 2) is

DENIED; and
4.

This case is DISMISSED without prejudice for Plaintiff’s failure to pay

the filing and administrative fees upon initiation of this case.
A final judgment will be entered separately.

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DONE this 30th day of November, 2016.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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