Jacoby v. Waiver (INMATE 1)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

BRENT WILLIAM JACOBY, #291560, )

)

Plaintiff, )

)

v. ) CIVIL ACTION NO. 2:19-CV-1034-WHA

) [WO]

LT. WAIVER, et al., )

)

Defendants. )

RECOMMENDATION OF THE MAGISTRATE JUDGE

I. INTRODUCTION

This case is before the court on a 42 U.S.C. § 1983 complaint filed by Plaintiff, an indigent

state inmate currently incarcerated at the Kilby Correctional Facility. In this complaint, Jacoby

alleges that correctional officers used excessive force against him on November 9, 2019 during a

prior term of incarceration at the Elmore Correctional Facility. He also challenges the

constitutionality of a mental health evaluation conducted at the Bullock Correctional Facility from

on or about November 11, 2019 until November 20, 2019.

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).

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

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).

II. DISCUSSION

Court records establish that Plaintiff, while incarcerated or detained, has on at least three

occasions had civil actions 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: (1) Jacoby v. Buncombe

County Drug Treatment Program, Civil Action No. 1:09-cv-304-GCM (W.D. N.C. 2009) (failure

to state a claim); (2) Jacoby v. Jones, Civil Action No. 2:15-cv-543-MHT (M.D. Ala. 2018) (appeal

frivolous); (3) Jacoby v. Thomas, Civil Action No. 2:15-cv-367-MHT (M.D. Ala. 2018) (appeal

frivolous); and (4) Jacoby v. Jones, Civil Action No. 2:15-cv-849-WKW (M.D. Ala. 2018) (appeal

frivolous). This court concludes these summary dismissals place Plaintiff in violation of 28 U.S.C.

§ 1915(g).

Since Plaintiff has three strikes, he may not proceed in forma pauperis unless the claims

raised demonstrate he was “under imminent danger of serious physical injury” upon initiation of

this case. 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

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.”

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)

v. Johnson, 387 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 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.”).

The court has carefully reviewed Plaintiff’s claims. Even construing all allegations in his

favor, his claims do not entitle him to avoid the bar of § 1915(g) because they do not allege nor

indicate that 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 applying 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)); 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 and Plaintiff’s failure to pay the requisite filing and administrative

fees upon initiation of this case, the court concludes this case is due to be summarily dismissed

without prejudice. 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) (holding that “[a]fter the third meritless suit, the prisoner must pay

the full filing fee at the time he initiates the suit.”).

III. 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 December 27, 2019, the plaintiff may file objections to the

Recommendation. Any objection must specifically identify the findings in the Recommendation

objected to. Frivolous, conclusive or general objections will not be considered by the District

Court. The plaintiff is advised that this Recommendation is not a final order of the court and,

therefore, it is not appealable.

Failure to file written objections to the proposed findings and recommendations in the

Magistrate Judge’s report shall bar the plaintiff 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) (“When the magistrate

provides such notice and a party still fails to object to the findings of fact and those findings are

adopted by the district court the party may not challenge them on appeal in the absence of plain

error or manifest injustice.”); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989).

DONE this 13th day of December, 2019.

/s/ Charles S. Coody

UNITED STATES MAGISTRATE JUDGE