Opinion
CIVIL ACTION NO. 2:15-CV-854-MHT [WO]
11-19-2015
JAMES BROADHEAD, #224 802, Plaintiff, v. CORRECTIONAL OFFICER R. GASDON, et al., Defendants.
ORDER AND RECOMMENDATION OF THE MAGISTRATE JUDGE
I. INTRODUCTION
This case is before the court on a 42 U.S.C. § 1983 complaint filed by James M. Broadhead ["Broadhead"], a frequent federal litigant, incarcerated at the Donaldson Correctional Facility in Bessemer, Alabama. Under 28 U.S.C. § 1915, a prisoner may not 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." 28 U.S.C. § 1915(g).
In Rivera v. Allin, 144 F.3d 719, 731 (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." In Jones v. Bock, 549 U.S. 199, 216 (2007), the Supreme Court abrogated Rivera but only to the extent it compelled an inmate to plead exhaustion of remedies in his complaint as "failure to exhaust is an affirmative defense under the PLRA . . . and inmates are not required to specifically plead or demonstrate exhaustion in their complaints."
I. DISCUSSION
Upon initiating this case Broadhead did not pay the $350.00 filing fee and $50.00 administrative fee nor did he apply for leave to proceed in forma pauperis. In cases with these deficiencies, the usual practice of this court is to enter an order advising Plaintiff he must pay the full filing fee and concomitant administrative fee or apply for leave to proceed in forma pauperis. Under the directives of 28 U.S.C. § 1915(g), however, a prisoner may not 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." Consequently, an inmate in violation of the "three strikes" provision of § 1915(g) who is not in "imminent danger" of suffering a serious physical injury must pay the filing fee upon initiation of his case. Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002).
Federal court records establish that Broadhead, while incarcerated or detained, has on at least four occasions had civil actions dismissed under 28 U.S.C. § 1915 as frivolous, malicious, for failure to state a claim, and/or for asserting claims against defendants immune from suit. The actions on which this court relies in finding a § 1915(g) violation by Broadhead are: (1) Broadhead v. Dozier, et al., Case No. 2:11-CV-489-MEF-TFM (M.D. Ala. 2012) (complaint malicious); (2) Broadhead v. O'Brian, et al., Case No. 4:10-CV-475-JHH-RRA (N.D. Ala. 2010) (complaint frivolous); (3) Broadhead v. Hopkins, et al., Case No. 4:10-CV-439-LSC-RRA (N.D. Ala. 2010) (complaint frivolous); and (4) Broadhead v. Kirrire, et al., Case No. 4:10-CV-53-VEH-RRA (N.D. Ala. 2010) (complaint frivolous).
This court may take judicial notice of its own records and the records of other federal courts. Nguyen v. United States, 556 F.3d 1244, 1259 n.7 (11th Cir. 2009); United States v. Rey, 811 F.2d 1453, 1457 n.5 (11th Cir. 1987); United States v. Glover, 179 F.3d 1300, 1302 n.5 (11th Cir. 1999).
Upon review of the present complaint and the numerous other civil actions filed by Broadhead in this and the other federal courts of this state alleging a similar factual basis for relief, the court finds Broadhead fails to demonstrate that he "is under imminent danger of serious physical injury" as required to meet the exception allowing circumvention of the directives in 28 U.S.C. § 1915(g). Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999) (holding that a prisoner who has filed three or more frivolous lawsuits or appeals and seeks to proceed in forma pauperis must present facts sufficient to demonstrate "imminent danger" to circumvent application of the "three strikes" provision of 28 U.S.C. § 1915(g)); Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002) (noting that the imminent danger exception is available only "[w]hen a threat or prison condition is real and proximate, and when the potential consequence is 'serious physical injury....'"). Thus, even if the court provided Broadhead an opportunity to seek in forma pauperis status, and he then sought such treatment, he could not proceed in forma pauperis due to his violation of the "three strikes" provision of 28 U.S.C. § 1915(g).
A review of the records for this court and the other federal courts of this state show Broadhead has filed numerous cases alleging similar claims of excessive force and asserting injuries similar to those set forth in this complaint. See Broadhead v. Hicks, et al., Case No. 2:12-CV-2369-JHH-RRA (N.D. Ala.); Broadhead v. Price, et al., Case No. 2:12-CV-2193-IPJ-RRA (N.D. Ala.); Broadhead v. Byres, et al., Case No. 4:12-CV-644-KOB-RRA (N.D. Ala.); Broadhead v. Baker, et al., Case No. 4:12-CV-585-SLB-RRA (N.D. Ala.); Broadhead v. Norris, et al., Case No. 2:11-CV-490-MEF-TFM (M.D. Ala.); Broadhead v. Dozier, et al., Case No. 2:11-CV-489-MEF-TFM (M.D. Ala.); Broadhead v. Woodard, et al., Case No. 2:11-CV-341-MEF-TFM (M.D. Ala.); Broadhead v. Scott, et al., Case No. 4:10-CV-1152-WMA-RRA (N.D. Ala.); Broadhead v. Carter, et al., Case No. 4:10-CV-1142-AKK-RRA (N.D. Ala.); Broadhead v. Miles, et al., Case No. 4:10-CV-1141-JHH-RRA (N.D. Ala.); Broadhead v. Scott, et al., Case No. 4:10-CV-1028-AKK-RRA (N.D. Ala.); Broadhead v. Malone, et al., Case No. 4:10-CV-806-JHH-RRA (N.D. Ala.); Broadhead v. McKay, et al., Case No. 4:10-CV-751-RRA (N.D. Ala.); Broadhead v. O'Brian, et al., Case No. 4:10-CV-475-JHH-RRA (N.D. Ala.); Broadhead v. Hopkins, et al., Case No. 4:10-CV-439-LSC-RRA (N.D. Ala.); Broadhead v. Wise, et al., Case No. 4:10-CV-388-IPJ-RRA (N.D. Ala.); Broadhead v. Brown, et al., Case No. 4:10-CV-350-VEH-RRA (N.D. Ala.); Broadhead v. Swain, et al., Case No. 4:10-CV-113-AKK-RRA (N.D. Ala.); Broadhead v. Richburg, et al., Case No. 4:10-CV-54-IPJ-RRA (N.D. Ala.); Broadhead v. Kirrire, et al., Case No. 4:10-CV-53-VEH-RRA (N.D. Ala.); Broadhead v. Swain, et al., Case No. 4:09-CV-2606-SLB-RRA (N.D. Ala.); Broadhead v. Northcutt, et al., Case No. 4:09-CV-2512-SLB-RRA (N.D. Ala.); Broadhead v. Michael, et al., Case No. 4:09-CV-2473-VEH-RRA (N.D. Ala.); Broadhead v. Griggs, et al., Case No. 1:10-CV-241-CG-C (S.D. Ala.); Broadhead v. Heinz, et al., Case No. 1:10-CV-129-KD-B (S.D. Ala.); and Broadhead v. Mixon, et al., Case No. 1:10-CV-12-WS-C (S.D. Ala.). --------
Based on the foregoing, the court concludes this case is due to be summarily dismissed without prejudice due to Broadhead's failure to pay the requisite filing and administrative fees upon initiation of this case. Dupree, 284 F.3d at 1236 (emphasis in original) ("[T]he proper procedure is for the district court to dismiss the complaint without prejudice when [an inmate is not entitled] to proceed in forma pauperis [due] to [violation of] the provisions of § 1915(g)" because the prisoner "must pay the filing fee at the time he initiates the suit."); Vanderberg v. Donaldson, 259 F.3d 1321, 1324 (11th Cir. 2001) (same).
II. CONCLUSION
Accordingly, it is the RECOMMENDATION of the Magistrate Judge this case be DISMISSED without prejudice for Plaintiff's failure to pay the filing and administrative fees upon his initiation of this case.
It is ORDERED that Plaintiff's motion for appointment of counsel (Doc. 1) is DENIED.
It is further ORDERED that on or before December 3, 2015, Plaintiff may file an objection to the Recommendation. Any objection filed must specifically identify the factual findings and legal conclusions in the Magistrate Judge's Recommendation to which Plaintiff objects. Frivolous, conclusive or general objections will not be considered by the District Court. This Recommendation is not a final order and, therefore, it is not appealable.
Failure to file a written objection to the proposed findings and recommendations in the Magistrate Judge's report shall bar a party from a de novo determination by the District Court of factual findings and legal issues covered in the report and shall "waive the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions" except upon grounds of plain error if necessary in the interests of justice. 11th Cir. R. 3-1; see Resolution Trust Co. v. Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989).
DONE this 19th day of November, 2015.
/s/ Gray M. Borden
UNITED STATES MAGISTRATE JUDGE