Cobble v. Barr (INMATE 2)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

DANIEL ERIC COBBLE, #758 572, )

)

Plaintiff, )

)

v. ) CIVIL ACTION NO. 2:19-CV-416-MHT

) [WO]

U.S. ATTORNEY GENERAL, )

CURRENT AND FUTURE, )

)

Defendant. )

RECOMMENDATION OF THE MAGISTRATE JUDGE

This case is before the court on a petition for mandamus filed by Plaintiff, an inmate

incarcerated at the Sumter County Jail in Americus, Georgia. 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.”1 28 U.S.C. § 1915(g). 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

1 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.”

pay the filing fee upon initiation of his case. Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir.

2002).

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, as malicious, for failure to state

a claim and/or for asserting claims against defendants immune from suit under 28 U.S.C. § 1915.2

The cases on which this court relies in finding a § 1915(g) violation are: Cobble v. U.S.

Government, No. 1:18-CV-92-LAG (M.D. Ga. 2018) (dismissed as frivolous); Cobble v. Jones,

No. 4:16-CV-362-LAG (M.D. Ga. 2016) (dismissed as frivolous and for failure to state a claim);

Cobble v. Bloom, No. 1:04-CV-1150-SCJ (N.D. Ga. 2004) (dismissed as frivolous); Cobble v.

David, No. 1:04-CV-560-SCJ (N.D. Ga. 2004) (dismissed as frivolous); Cobble v. Cobb Cty.

Police, No. 1:02-CV-2821-RWS (N.D. Ga. 2002) (dismissed for failure to state a claim).3 This

court concludes these summary dismissals place Plaintiff in violation of 28 U.S.C. § 1915(g).

Since Plaintiff has in excess of three strikes, he may not proceed in forma pauperis in this

case unless he demonstrates he is “under imminent danger of serious physical injury.” 28 U.S.C.

§ 1915(g). In determining whether a plaintiff satisfies this burden, “the issue is whether his

complaint, as a whole, alleges imminent danger of serious physical injury.” Brown v. Johnson, 387

2 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).

3 These cases are just the tip of the iceberg. In Cobble v. Neeley, Civil Action No. 1:18-cv-172-LAG

(M.D. Ga 2018), the court noted that “[a] search of PACER records reveals that Plaintiff has filed

hundreds of federal cases over the years, including, in the Middle District of Georgia alone, eighty-nine

separate cases.” As a result of Plaintiff’s prolific history of filing frivolous and vexatious cases, and to

curb further abuses, the court sanctioned his ability to file civil actions in that court for a period of two

years by only allowing a pleading to be filed if, on review, the court determines it alleges a plausible

claim for relief. See Id.

F.3d 1344, 1350 (11th Cir. 2004). “A plaintiff must provide the court with specific allegations of

present imminent danger indicating that a serious physical injury will result if his claims are not

addressed.” Abdullah v. Migoya, 955 F. Supp.2d 1300, 1307 (S.D. Fla. 2013)) (emphasis added);

May v. Myers, 2014 WL 3428930, at *2 (S.D. Ala. July 15, 2014) (holding that, to meet the

exception to application of § 1915(g)’s three strikes bar, the facts contained in the complaint must

show that the plaintiff “was under ‘imminent danger of serious physical injury’ at the time he filed

this action.”); Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002) (holding that imminent danger

exception to § 1915(g)’s three strikes rule is construed narrowly and available only “for genuine

emergencies,” where “time is pressing” and “a threat . . . is real and proximate.”).

Here, Plaintiff files suit against United States Attorney General William Barr to “enforce

federal law and fed[eral] case laws upon all peoples…” The petition goes on to assert an amalgam

of unrelated statements and comments. After careful review, and even construing all allegations in

favor of Plaintiff, his claims do not entitle him to avoid the bar of § 1915(g) because they do not

allege nor indicate he was “under imminent danger of serious physical injury” when he filed this

cause of action as required to meet the imminent danger exception to the application of 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 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.’”); Abdul-

Akbar v. McKelvie, 239 F.3d 307, 315 (3d Cir. 2001) (“By using the term ‘imminent,’ Congress

indicated that it wanted to include a safety valve for the ‘three strikes’ rule to prevent impending

harms, not those harms that had already occurred.”).

Based on the foregoing, the court concludes this case is due to be summarily dismissed

without prejudice as Plaintiff failed to pay the requisite filing and administrative fees upon his

initiation of this case. Dupree, 284 F.3d at 1236 (emphasis in original) (finding “the 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 § 1915(g)” because the

prisoner “must pay the filing fee [and now applicable administrative fee] at the time he initiates

the suit.”) (emphasis in original); Vanderberg v. Donaldson, 259 F.3d 1321, 1324 (11th Cir. 2001)

(same).

II. CONCLUSION

Accordingly, it is the RECOMMENDATION of the Magistrate Judge that:

1. Plaintiff’s motion for leave to proceed in forma pauperis (Doc. 2) be DENIED; and

2. 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 further

ORDERED that on or before July 2, 2019, Plaintiff may file an objection to this

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. Plaintiff is advised

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 18th day of June, 2019.

/s/ Charles S. Coody

UNITED STATES MAGISTRATE JUDGE