Wilson v. Ivey et al (INMATE 1)
ORDERED as follows: 1. Plaintiff's objections (Doc. # 4 ) are OVERRULED; 2. The Magistrate Judge's Recommendation (Doc. # 3 ) is ADOPTED; 3. Plaintiff's application to proceed in forma pauperis (Doc. # 2 ) is DENIED; and 4. This case is DISMISSED without prejudice for Plaintiff's failure to pay the fees upon initiation of this case pursuant to 28 U.S.C. 1915(g). A final judgment will be entered separately. Signed by Chief Judge William Keith Watkins on 7/12/2017. (kh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
JOSEPH MICHAEL WILSON,
AIS # 230202
KAY IVEY, et al.,
CASE NO. 2:17-CV-381-WKW
On June 15, 2017, the Magistrate Judge filed a Recommendation. (Doc. # 3.)
On June 26, 2017, Plaintiff filed a pro se Motion for Reconsideration (Doc. # 4),
which the court construes as a timely objection to the Recommendation.
Nevertheless, upon an independent and de novo review of the record and
consideration of the objections, the Recommendation is due to be ADOPTED.
The Magistrate Judge recommends dismissal under the “three strikes”
provision of 28 U.S.C. § 1915(g) because Plaintiff asks to proceed in forma pauperis
and “has, on 3 or more occasions, while incarcerated . . . 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.” Plaintiff protests that the cases cited by the
Magistrate Judge were not dismissed on those grounds. (Doc. # 4, at 1–4.) However,
the record in each case supports the Magistrate Judge’s conclusion. (See Doc. # 3
(citing three of Plaintiff’s former cases, which all were dismissed under 28 U.S.C. §
1915(e)(2)(B)(i) or (ii) for being “frivolous or malicious” or for “fail[ing] to state a
claim on which relief may be granted”).) Plaintiff’s objection is therefore overruled.
Exceptions to the three strikes rule are permitted under § 1915(g) if “the
prisoner is under imminent danger of serious physical injury.” Thus, Plaintiff
contends that the secondhand smoke he inhales in the prison, which allegedly
includes smoke from cigarettes containing a mix of tobacco and other dangerous
substances, places him within this exception. (Doc. # 4, at 4.) However, as the
Magistrate Judge already pointed out, the court addressed this argument in one of
Plaintiff’s prior cases. (Doc. # 5, at 2.) That argument is unavailing now as it was
Accordingly, it is ORDERED as follows:
Plaintiff’s objections (Doc. # 4) are OVERRULED;
The Magistrate Judge’s Recommendation (Doc. # 3) is ADOPTED;
Plaintiff’s application to proceed in forma pauperis (Doc. # 2) is
This case is DISMISSED without prejudice for Plaintiff’s failure to pay
the fees upon initiation of this case pursuant to 28 U.S.C. § 1915(g).
A final judgment will be entered separately.
DONE this 12th day of July, 2017.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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