Ellington v. King et al (INMATE 2)

Filing 3

REPORT AND RECOMMENDATIONS of the Magistrate Judge that this case be DISMISSED without prejudice for Plf's failure to pay the full filing fee upon the initiation of this case; Objections to R&R due by 11/16/2006. Signed by Judge Charles S. Coody on 11/3/06. (wcl, )

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Ellington v. King et al (INMATE 2) Doc. 3 Case 3:06-cv-00991-WKW-WC Document 3 Filed 11/03/2006 Page 1 of 4 IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA E A ST E R N DIVISION _______________________________ R IC K Y LUTHER ELLINGTON P l a in tif f , v. WILLIAM KING, III, et al., D e f e n d a n ts . _______________________________ * * * * * 3:06-CV-991-WKW (WO) ORDER AND RECOMMENDATION OF THE MAGISTRATE JUDGE O n November 1, 2006, Ricky Ellington, an inmate incarcerated at the Opelika City J a il in Opelika, Alabama, filed an application for leave to proceed in forma pauperis. See 2 8 U.S.C. 1915(a). Pursuant to the directives of 28 U.S.C. 1915(g), a prisoner is not a llo w e d to bring a civil action or proceed on appeal in forma pauperis if he "has, on 3 or m o re 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, m a licio u s, or fails to state a claim upon which relief may be granted, unless the prisoner is u n d er imminent danger of serious physical injury." 1 In Rivera v. Allin, 144 F.3d 719, 731 (11th Cir. 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." 1 Dockets.Justia.com Case 3:06-cv-00991-WKW-WC Document 3 Filed 11/03/2006 Page 2 of 4 DISCUSSION Court records establish that Plaintiff, while incarcerated or detained, has on at least three occasions had civil actions and/or appeals dismissed as frivolous, malicious, for failure to state a claim and/or for asserting claims against defendants who were immune from suit p u rs u a n t to the provisions of 28 U.S.C. 1915. The cases on which the court relies in finding a violation of 1915(g) include: (1) Ellington v. City of Opelika, Civil Action No. 3:99-CV1 7 1 -W H A (M.D. Ala. 1999); (2) Ellington v. City Jail, Civil Action No. 3:99-CV-172W H A (M.D. Ala. 1999); (3) Ellington v. Opelika City Jail, Civil Action No. 3:99-CV-944W H A (M.D. Ala. 1999); (4) Ellington v. Opelika City Jail, Civil Action No. 3:99-CV-999ID (M.D. Ala. 1999); and (5) Ellington v. Opelika City Jail, Civil Action No. 3:99-CV-1000M H T (M.D. Ala. 1999). T h e court has carefully reviewed the claims presented in the instant action wherein P lain tiff alleges that he is being denied adequate dental care. The claims before this court d o not allege nor in any way indicate that Plaintiff "is under imminent danger of serious p h y s ic a l injury" as is required to meet the imminent danger exception to the application of 2 8 U.S.C. 1915(g). Medberry v. Butler, 185 F.3d 1189 (11 th Cir. 1999). Based on the foregoing, the court concludes that Plaintiff's motion for leave to p ro c e ed in forma pauperis is due to be denied and this case dismissed without prejudice for P la in tiff's failure to pay the requisite $350.00 filing fee upon the initiation of this cause of ac tio n . Dupree v. Palmer, 284 F.3d 1234, 1236 (11 th Cir. 2002) (emphasis in original) ("[T ]h e proper procedure is for the district court to dismiss the complaint without prejudice Case 3:06-cv-00991-WKW-WC Document 3 Filed 11/03/2006 Page 3 of 4 wen 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."). C O N C L U SIO N In light of the foregoing, it is ORDERED that the motion for leave to proceed in forma pauperis filed by Plaintiff o n November 1, 2006 (Doc. No. 2) is DENIED. It is the RECOMMENDATION of the Magistrate Judge that this case be DISMISSED w i t h o u t prejudice for Plaintiff's failure to pay the full filing fee upon the initiation of this ca se. It is further ORDERED that the parties shall file any objections to this Recommendation on or b e fo re November 16, 2006. Any objections filed must specifically identify the findings in th e Magistrate Judge's Recommendation to which the party is objecting. Frivolous, co n clus ive or general objections will not be considered by the District Court. The parties are a d vis e d that this Recommendation is not a final order of the court and, therefore, it is not a p p e a la b le . F a ilu re to file written objections to the proposed findings and advisements in the M a gis tra te Judge's Recommendation shall bar the party from a de novo determination by the D is tric t Court of issues covered in the Recommendation and shall bar the party from a tta c kin g on appeal factual findings in the Recommendation accepted or adopted by the D istrict Court except upon grounds of plain error or manifest injustice. Nettles v. Case 3:06-cv-00991-WKW-WC Document 3 Filed 11/03/2006 Page 4 of 4 Wainwright, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 3 3 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, e n 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. D o n e this 3 r d day of November, 2006. /s/Charles S. Coody CHARLES S. COODY C H IE F UNITED STATES MAGISTRATE JUDGE

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