Howard v. Young et al

Filing 5

MEMORANDUM OPINION: The Court adopts the Magistrate Judge's report and accepts his recommendation. By separate order, because Mr. Howard did not pay the filing and administrative fees of $405.00 when he filed this complaint, the Court will dismiss this action without prejudice. Signed by Judge Madeline Hughes Haikala on 5/8/2024. (DNW)

FILED
2024 May-08 AM 11:21
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
GAVIN HOWARD,
Plaintiff,
v.
JAMES YOUNG, et al.,
Defendants.

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Case No. 7:24-cv-187-MHH-GMB

MEMORANDUM OPINION
Plaintiff Gavin Howard, an inmate at Pickens County Jail in Carrollton,
Alabama, filed this action pursuant to 42 U.S.C. § 1983. (Doc. 1). In his complaint,
Mr. Howard alleges violations of his rights under the Fourth Amendment by
defendants James Young and Andrew/Drew Wade based on an alleged false arrest,
illegal detention, and malicious prosecution. (Doc. 1).1 Mr. Howard also alleges an
Eighth Amendment claim against defendant Patricia Jones for her alleged deliberate
indifference to his medical needs. Mr. Howard contends that Ms. Jones denied
medical care after he slipped in a shower, refused to refill his “pump” (which the
Court understands to be an asthma inhaler – Doc. 4) after he inhaled mold, and
denied his request for a mental health exam, (Doc. 1). Mr. Howard alleges defendant

Mr. Howard alleges that Mr. Wade works for a bank. (Doc. 1). The Court does not understand
Mr. Howard’s constitutional claim against Mr. Wade.
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Patrick Collerd violated the Eighth Amendment when he refused to answer Mr.
Howard’s inmate grievances, refused to provide Mr. Howard a pump, took funds
Mr. Howard’s family sent, supplied toilet paper only once per week, supplied soap
only once per month, denied medical care for Mr. Howard’s back pain, denied Mr.
Howard’s request for mental health care, and forced Mr. Howard to pay for stamps.
(Doc. 1).
Mr. Howard filed with his complaint an application to proceed in forma
pauperis. (Doc. 2). The Magistrate Judge has recommended that the Court deny
Mr. Howard’s application to proceed in forma pauperis pursuant to 28 U.S.C. §
1915(g) because, without prepayment of a filing fee, Mr. Howard already has filed
several § 1983 actions that the Court has dismissed for failure to state a claim. (Doc.
3). Mr. Howard objects to the Magistrate Judge’s recommendation. (Doc. 4).
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. CIV. P. 72(b)(3)
(“The district judge must determine de novo any part of the magistrate judge’s
disposition that has been properly objective to.”). A district court’s obligation to
“‘make a de novo determination of those portions of the report or specified proposed
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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).
As the Magistrate Judge noted, Mr. Howard has filed at least four cases that
have been dismissed as meritless, including: Howard v. Bailey, 7:22-cv-661-AMMGMB (N.D. Ala. May 23, 2022) (dismissed for failure to state a claim); Howard v.
State of Alabama, et al., 7:21-cv-1599-LSC-GMB (N.D. Ala. Dec. 2, 2021)
(dismissed for failure to state a claim); Howard v. Pickens Cty., Ala., et al., 7:21-cv1153-AMM-GMB (N.D. Ala. Aug. 23, 2021) (dismissed for failure to state a claim);
and Howard v. West Ala. Bank of Trust, et al., 7:21-cv-1127-AMM-GMB (N.D. Ala.
Aug. 18, 2021) (dismissed for failure to state a claim). Therefore, under the Prison
Litigation Reform Act, unless he is in imminent danger of serious physical injury,
to file another lawsuit, Mr. Howard must pay the full filing fee. 28 U.S.C. § 1915(g).
The Court has reviewed the complaint and Mr. Howard’s objections to the
Magistrate Judge’s report and has nothing to add to the Magistrate Judge’s analysis
of Mr. Howard’s claims against Mr. Young and Mr. Wade for false arrest, illegal
detention, and malicious prosecution. Similarly, the Magistrate Judge’s analysis of
Mr. Howard’s Eighth Amendment claim against Mr. Collerd does not require
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additional discussion; that analysis is sound. With respect to Ms. Jones, in his
objections, Mr. Howard asserts that he suffered severe breathing problems because
of his exposure to mold, and Ms. Jones refused to refill his asthma inhaler pump.
(Doc. 4, pp. 1-2). Mr. Howard contends that as a result, he passed out and fell,
suffering injury. (Doc. 4, pp. 1-2). Facially, the allegation suggests imminent
danger of serious physical injury, but a closer look indicates that the allegation is
strategic, not substantive. In his complaint, Mr. Howard alleged that he slipped and
fell in the shower because the shower was flooded. (Doc. 1, p. 12). He did not assert
that his allegations concerning mold and his need for a refill of his asthma inhaler
related to his fall in the shower. Mr. Howard may not reformulate his factual
allegations to avoid payment of the filing fee under 28 U.S.C. § 1915(g). Based on
the factual allegations in Mr. Howard’s complaint, which the Court accepts as true
for purposes of this order, the Magistrate Judge properly concluded that Mr.
Howard’s allegations concerning Ms. Jones do not indicate that he is in imminent
danger of serious medical harm.
Therefore, having reviewed de novo the materials in the Court’s electronic
docket, the Court adopts the Magistrate Judge’s report and accepts his
recommendation. By separate order, because Mr. Howard did not pay the filing and
administrative fees of $405.00 when he filed this complaint, the Court will dismiss
this action without prejudice.
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DONE and ORDERED this May 8, 2024.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

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