Williams v. Tillman et al

Filing 10

Order VACATING the Order & Judgment (Docs. 7 & 8 ) in light of the 9 Objection to Report and Recommendations filed by Willie Kevin Williams. After due and proper consideration of all portions of the file deemed relevant to the issue raised and of the plaintiffs objection, the R&R is ADOPTED as the opinion of the Court. This action is dismissed without prejudice pursuant to 28 U.S.C.§ 1915(g). Signed by Chief Judge William H. Steele on 6/25/2013. Copy mailed to Plaintiff. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
WILLIE KEVIN WILLIAMS,
Plaintiff,
v.
DEBORAH DENISE TILLMAN, et al.,
Defendants.

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) CIVIL ACTION 13-0036-WS-B
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ORDER
In February 2013, the plaintiff mailed a timely objection to the Magistrate Judge’s
report and recommendation (“R&R”). (Doc. 9). For reasons that remain unclear, this
mailing was not received by the Court until June 18, long after the Court entered an order
adopting the R&R and dismissing the plaintiff’s action without prejudice. (Docs. 7, 8).
For the reasons set forth above, and pursuant to Rule 60(b)(1), the judgment, and
the Court’s order adopting the R&R, are vacated. The Court proceeds to evaluate the
R&R in light of the plaintiff’s objection thereto.
The R&R correctly points out that a prisoner who has had three or more prior civil
actions, brought while incarcerated or detained, dismissed as frivolous, malicious, or for
failure to state a claim, cannot be permitted to bring an action in forma pauperis (“IFP”).
28 U.S.C. § 1915(g). Such a litigant must pay the full $350 filing fee up front. The
R&R demonstrates, and the plaintiff does not deny, that he has three such prior lawsuits.
The only exception to this “three strikes rule” applies when the plaintiff “is under
imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). In his objection, the
plaintiff states that his complaint challenges the defendants’ role in his wrongful
conviction of rape and kidnapping. Because of his conviction of these crimes, he says, he
was placed in danger by fellow inmates and/or others who labeled him a rapist and
kidnapper. While he was housed at Easterling Correctional Facility (“Easterling”), he

says, his “life was in danger” and “was in fact placed in imminent danger.” (Doc. 9 at 12).
The plaintiff was confined at Easterling when he filed suit in January 2013. (Doc.
1 at 1). But within two weeks thereafter, the plaintiff was transferred to Elmore
Correctional Facility (“Elmore”). (Doc. 2). The plaintiff does not allege that he is in
imminent danger of serious physical injury at Elmore. On the contrary, he alleges that he
was “in imminent danger at the prison in which he was residing.” (Doc. 9 at 1 (emphasis
added)). He continues that “his life was in danger at Easterling Correctional Facility, but
the plaintiff was Transferred to another facility in which he resides at this time.” (Id. at 2
(emphasis added)). The plaintiff thus negates the exception to Section 1915(g).
“[A] prisoner’s allegation that he faced imminent danger sometime in the past is
an insufficient basis to allow him to proceed in forma pauperis pursuant to the imminent
danger exception to the statute.” Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir.
1999). A prisoner who was in imminent danger of serious physical injury when he filed
suit, but who is transferred to another facility without such danger before he moves for
leave to proceed IFP, does not satisfy the “three strikes” exception. Owens v. Schwartz,
___ Fed. Appx. ___, 2013 WL 2319423 at *2 (11th Cir. 2013). The plaintiff was
transferred to Elmore before he sought leave to proceed IFP. (Doc. 4). Therefore, he
cannot satisfy the exception.
For the reasons set forth above, and after due and proper consideration of all
portions of the file deemed relevant to the issue raised and of the plaintiff’s objection, the
R&R is adopted as the opinion of the Court. This action is dismissed without
prejudice pursuant to 28 U.S.C.§ 1915(g). Judgment shall be entered accordingly by
separate order.
DONE and ORDERED this 25th day of June, 2013.
s/WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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