Pickett v. Butler (INMATE 3)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

JOE RANGER PICKETT, #128 361, )

)

Plaintiff, )

)

v. ) CIVIL ACTION NO. 2:20-CV-162-WHA

) [WO]

J. WISE, JUSTICE, et al., )

)

Defendants. )

RECOMMENDATION OF THE MAGISTRATE JUDGE

I. INTRODUCTION

This case is before the court on a Petition for Writ of Mandamus filed by Joe Ranger Pickett

[“Pickett”], an indigent state inmate incarcerated at the Loxley Work Release Center in Loxley,

Alabama. In this petition, Pickett seeks mandamus relief against various state court officials and

entities about rulings and decisions they made regarding Pickett’s conviction for first degree

robbery for which he is serving a term of ninety-nine years imprisonment. Pickett seeks an order

compelling respondents to set aside their arbitrary and fraudulent abuse of discretion to end the

grave miscarriage of justice against him because, he claims, he has paid the price for his offense

“over and over again.” Doc. 1.

Pickett requests leave to proceed in forma pauperis under 28 U.S.C. § 1915(a). Doc. 3.

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 pay the filing fee upon initiation of his case. Dupree v.

Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002). “The prisoner cannot simply pay the filing fee

after being denied in forma pauperis status.” Id.

II. DISCUSSION

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

occasions had civil actions or appeals summarily dismissed under 28 U.S.C. § 1915 as frivolous,

malicious, for failure to state a claim, or for asserting claims against defendants immune from suit.2

The civil actions or appeals on which this court relies in finding a violation of § 1915(g) by Pickett

are: (1) Pickett v. Gaither, et al., Case No. 2:98-CV-1343-ID (M.D. Ala. 1999) (appeal dismissed

as frivolous); (2) Pickett v. McAliley, et al., Case No. 2:98-CV-1330-WHA (M.D. Ala. 1999)

(appeal dismissed as frivolous); (3) Pickett v. Thompson, et al., Case No. 2:93-CV-642-ID (M. D.

Ala. 1993) (complaint dismissed as frivolous); (4) Pickett v. Esdale, et al., Case No. 2:93-CV-294-

ID (M. D. Ala. 1993) (complaint dismissed as frivolous); and (5) Pickett v. Phelps, et al., Case No.

2:92-CV-1289-TMH (M.D. Ala. 1992) (complaint dismissed as frivolous). The court concludes

these summary dismissals place Pickett in violation of 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

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)

Since Pickett 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

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)); 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 Pickett’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 Pickett’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 [and/or malicious] 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. The motion for leave to proceed in forma pauperis filed by Plaintiff (Doc. 3) be

DENIED.

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

ORDERED that on or before April 22, 2020, 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. 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 8th day of April 2020.

/s/ Charles S. Coody

CHARLES S. COODY

UNITED STATES MAGISTRATE JUDGE