Fredrickson v. Attorney General (USA)

Filing 6

MEMORANDUM OPINION. Signed by Judge Madeline Hughes Haikala on 9/11/2020. (MEB2)

FILED
2020 Sep-11 PM 03:01
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
TIM FREDRICKSON,
Plaintiff,
v.
ATTORNEY GENERAL (USA),
Defendant.

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Case No. 2:20-cv-01110-MHH-SGC

MEMORANDUM OPINION
Plaintiff Tim Fredrickson, a prisoner in the Mercer County Jail in Aledo,
Illinois, filed this action pursuant to 42 U.S.C. § 1983. (Doc. 1). The magistrate
judge entered a report in which she recommended that the Court dismiss this case
pursuant to 28 U.S.C. § 1915(g) because Mr. Fredrickson did not pay the filing fee
when he filed his complaint, and he falls within the “three strikes rule” of that statute.
(Doc. 4). Mr. Fredrickson has objected to that recommendation. (Doc. 5). He
challenges the constitutionality of the three-strike provision and asserts that one of
his prior lawsuits should not count as a strike.
A district court “may accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). A
district judge must “make a de novo determination of those portions of the
[magistrate judge’s] report or specified proposed findings or recommendations to

which objection is made.” 28 U.S.C. § 636(b)(1); see also FED. R. CRIM. P. 59(b)(3)
(“The district judge must consider de novo any objection to the magistrate judge’s
recommendation.”). A district court’s obligation to “‘make a de novo determination
of those portions of the report or specified proposed findings or recommendations to
which objection is made,’” 447 U.S. at 673 (quoting 28 U.S.C. § 636(b)(1)), requires
a district judge to “‘give fresh consideration to those issues to which specific
objection has been made by a party,’” 447 U.S. at 675 (quoting House Report No.
94-1609, p. 3 (1976)). United States v. Raddatz, 447 U.S. 667 (1980) (emphasis in
Raddatz).
Taking Mr. Fredrickson’s arguments in reverse order, the Court is not
persuaded that it should not count one of his prior lawsuits, Fredrickson v. Attorney
General, Case no. 2:19-cv-04889-BMS, under the three-strike rule. In Fredrickson
v. Attorney General, Case no. 2:19-cv-04889-BMS (E.D. Pa. Jan. 31, 2020), the
district court held: “the Court will … dismiss [the plaintiff’s] Complaint with
prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim.” (See
Case no. 2:19-cv-04889-BMS, Doc. 8). In response to the plaintiff’s motion to
reconsider, the Pennsylvania district court noted “[b]y Memorandum and Order
dated January 31, 2020, the Court dismissed Fredrickson’s Complaint with prejudice
for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).” (Id. at Doc.
12). Under 28 U.S.C. § 1915(g), a dismissal for failure to state a claim counts as a
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strike. Therefore, the Court overrules Mr. Fredrickson’s argument concerning his
Pennsylvania lawsuit.
The Court also is not persuaded by Mr. Fredrickson’s argument that 28 U.S.C.
§ 1915(g)’s three-strike rule is unconstitutional. Mr. Fredrickson contends that 28
U.S.C. § 1915(g) is neither narrowly tailored nor focused on a “compelling
government interest.” (Doc. 5, p. 2). He suggests several options that courts may
exercise to avoid frivolous filings without requiring full payment of filing fees at the
time of filing the complaint. (Doc. 5, pp. 3-5).
Mr. Fredrickson’s arguments are not new, and those arguments have failed in
the Eleventh Circuit Court of Appeals. In Rivera v. Allen, the Eleventh Circuit held:
“[T]he right of access to federal courts is not a free-floating right, but
rather is subject to Congress’s Article III power to set limits on federal
legislation.” Roller v. Gunn, 107 F.3d 227, 231 (4th Cir.), cert. denied,
522 U.S. 874 (1997). Although it had the power to do so, Congress did
not repeal any particular cause-of-action available to prisoners. Rather,
“[s]ection 1915(g) does not prevent a prisoner with three strikes from
filing civil actions; it merely prohibits him from enjoying IFP status.”
Carson v. Johnson, 112 F.3d 818, 821 (5th Cir. 1997); see also Lyon v.
Krol, 127 F.3d 763, 765 (8th Cir. 1997) (“Section 1915(g) does not
prohibit prisoners from pursuing legal claims if they have had ‘three
strikes’ or three prior dismissals. It only limits their ability to proceed
[IFP].”). Through the PLRA, Congress changed only the rules
regarding IFP status. To be sure, proceeding IFP in a civil case is a
privilege, not a right – fundamental or otherwise. See Adepegba v.
Hammons, 103 F.3d 384, 386 (5th Cir. 1996). As such, imposition of
a modest filing fee on prisoners with “three strikes” is reasonable
because “Congress is no more compelled to guarantee free access to
federal courts than it is to provide unlimited access to them.” Roller,
107 F.3d at 231.
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144 F.3d 719, 723-24 (11th Cir. 1998), abrogated in part on other grounds by Jones
v. Bock, 549 U.S. 199, 215 (2007).
More recently, in Wright v. Sprayberry, the Eleventh Circuit held: “Wright’s
assertions regarding the constitutionality of § 1915(g) are foreclosed by precedent,
as this Court has previously held that § 1915(g) does not violate a prisoner’s right of
access to the courts or due process rights.” 2020 WL 2845567, *3 (11th Cir. June 2,
2020); see also Daker v. Jackson, 942 F.3d 1252, 1257 (11th Cir. 2019) (holding the
right to proceed in forma pauperis in a civil case “is a privilege, not a right –
fundamental or otherwise” and that “§ 1915(g) does not burden a fundamental
right”); Daker v. Robinson, 802 Fed. Appx. 513 (11th Cir. Feb. 19, 2020) (holding
prior precedent foreclosed the plaintiff’s equal protection concerns and that
“[b]ecause there is no First Amendment right to access the courts for free, it follows
that there is also no First Amendment right to speak in the courts for free”).
Because the Eleventh Circuit Court of Appeals already has considered and
rejected the arguments Mr. Fredrickson presents regarding the constitutionality of
28 U.S.C. § 1915(g), the Court may not revisit those arguments here. The Court
overrules Mr. Frederickson’s constitutional challenge to 28 U.S.C. § 1915(g).
As to the exception to the three-strikes rule for claims concerning “imminent
danger of serious physical injury,” the Court has reviewed Mr. Fredrickson’s

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complaint and is satisfied that he has not alleged facts demonstrating that he is
“under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).
Therefore, having reviewed and considered de novo the materials in the court
record, the Court adopts the magistrate judge’s report and accepts her
recommendation. The Court denies Mr. Fredrickson’s motion to proceed in forma
pauperis (Doc. 3). Because Mr. Fredrickson did not pay the filing and administrative
fees of $400.00 when he filed this complaint, by separate order, the Court will
dismiss this action without prejudice pursuant to 28 U.S.C. § 1915(g).

Mr.

Fredrickson may file a new civil rights action by completing and filing a new civil
rights complaint form and paying the filing and administrative fees totaling $400.00.
DONE and ORDERED this September 11, 2020.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

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