Avery v. Torbert et al (INMATE2)

Filing 3

ORDER denying 2 Application to Proceed Without Prepayment of Fees and Affidavit filed by Walter Jamar Avery, REPORT AND RECOMMENDATIONS 1 Inmate 1983 Complaint filed by Walter Jamar Avery; It is the Recommendation of the Mag Judge that this case be dismissed without prejudice for Plaintiff's failure to pay the full filing fee upon the initiation of this case; Objections to R&R due by 10/16/2008. Signed by Honorable Charles S. Coody on 10/3/08. (vma, )

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA EASTERN DIVISION _____________________________ WALTER AVERY, #184 038 Plaintiff, v. MAJOR TORBERT, et al., Defendants. _____________________________ * * * * * 3:08-CV-805-TMH (WO) ORDER AND RECOMMENDATION OF THE MAGISTRATE JUDGE On October 2, 2008, Walter Avery, an inmate incarcerated at the Ventress Correctional Facility in Clayton, Alabama, filed an application for leave to proceed in forma pauperis. See 28 U.S.C. 1915(a). Pursuant to the directives of 28 U.S.C. 1915(g), a prisoner is not allowed to 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 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 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 pursuant 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) Avery v. Camp, Civil Action No. 3:02-CV-81-WHA (M.D. Ala. 2002); (2) Avery v. Brown, Civil Action No. 3:02-CV-82-MHT (M.D. Ala. 2002); and (3) Avery v. Kirby, et al., Civil Action No. 3:06-CV-960-WKW (M.D. Ala. 2006). The court has carefully reviewed the claims presented in the instant action. Plaintiff complains that in June 2005 Defendants held him past his release date because they failed to award him jail credit to which he claims he was entitled. The claims before this court do not allege nor in any way indicate that Plaintiff "is under imminent danger of serious physical injury" as is required to meet the imminent danger exception to the application of 28 U.S.C. 1915(g). Medberry v. Butler, 185 F.3d 1189 (11th Cir. 1999). Based on the foregoing, the court concludes that Plaintiff's motion for leave to proceed in forma pauperis is due to be denied and this case dismissed without prejudice for Plaintiff's failure to pay the requisite $350.00 filing fee upon the initiation of this cause of action. Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (emphasis in original) ("[T]he proper procedure is for the district court to dismiss the complaint without prejudice when 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."). CONCLUSION In light of the foregoing, it is ORDERED that the motion for leave to proceed in forma pauperis filed by Plaintiff on October 2, 2008 (Doc. No. 2) is DENIED. It is the RECOMMENDATION of the Magistrate Judge that this case be DISMISSED without prejudice for Plaintiff's failure to pay the full filing fee upon the initiation of this case. It is further ORDERED that the parties shall file any objections to this Recommendation on or before October 16, 2008. Any objections filed must specifically identify the findings in the Magistrate Judge's Recommendation to which a party objects. Frivolous, conclusive or general objections will not be considered by the District Court. The parties are advised that this Recommendation is not a final order of the court and, therefore, it is not appealable. Failure to file written objections to the proposed findings and advisements in the Magistrate Judge's Recommendation shall bar the party from a de novo determination by the District Court of issues covered in the Recommendation and shall bar the party from attacking on appeal factual findings in the Recommendation accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, en 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. Done this 3rd day of October, 2008. /s/Charles S. Coody CHARLES S. COODY UNITED STATES MAGISTRATE JUDGE

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