Roberts v. Paulson et al (INMATE 2)

Filing 3

ORDER DENYING 2 motion for leave to Proceed in forma pauperis; REPORT AND RECOMMENDATION of the Mag 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 8/19/2011. Signed by Honorable Judge Wallace Capel, Jr on 8/5/11. (djy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
_____________________________
MICHAEL D. ROBERTS,
Plaintiff,
v.

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SHERIFF JAY JONES, et al.,

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Defendants.
_____________________________

3:11-CV-616-TMH
(WO)

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ORDER AND RECOMMENDATION OF THE MAGISTRATE JUDGE
On August 1, 2011, Plaintiff, an inmate incarcerated at the Lee County Detention
Center located in Opelika, 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

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In Rivera v. Allin, 144 F.3d 719, 731 (11thCir. 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.”

I. 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) Roberts v. Winston, et al., Civil Action No.
3:99-CV-1012-ID (M.D. Ala. 2000) (frivolous); (2) Roberts v. Chapman, et al., Civil Action
No. 3:99-CV-1010-WHA (M.D. Ala. 2000) (frivolous); and (3) Roberts v. Strickland, et al.,
Civil Action No. 3:99-CV-38-WHA (M.D. Ala. 2000) (appeal frivolous).
The court has carefully reviewed the claims presented in the instant action. Even
construing all allegations in favor of Plaintiff, his claims in this complaint do not entitle him
to avoid the bar of § 1915(g) because they do not allege, nor in any way indicate, that he was
“under imminent danger of serious physical injury” at the time he filed this cause of action
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
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§ 1915(g)” because the prisoner “must pay the filing fee at the time he initiates the suit.”).
II. CONCLUSION
In light of the foregoing, it is
ORDERED that the motion for leave to proceed in forma pauperis filed by Plaintiff
on August 1, 2011 (Doc. #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 August 19, 2011. 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 Sec., Inc., 667 F.2d 33
(11th Cir. 1982); see also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en
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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 5th day of August, 2011.

/s/ Wallace Capel, Jr.
WALLACE CAPEL, JR.
UNITED STATES MAGISTRATE JUDGE

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