Dorsey v. Turman (INMATE 2)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

LEONARD EUGENE DORSEY, )

)

Plaintiff, )

)

v. ) CIVIL ACTION NO. 2:20-CV-433-WKW

) [WO]

ELC. SHERIFF BLAKE TURMAN, 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 Leonard Dorsey

[Dorsey], an indigent inmate incarcerated at the Covington County Jail in Andalusia, Alabama.

Dorsey challenges his warrantless arrest on May 13, 2020, on a worthless check charge claiming

that under state law he cannot be imprisoned for civil debts he owes. Dorsey requests dismissal of

the charge and damages for false imprisonment. Named as defendants are Sheriff Blake Turman

and Judge Julie Moody. Doc. 1 at 3–4.

II. DISCUSSION

Upon initiation of this case, Dorsey filed a motion for leave to proceed in forma pauperis

under 28 U.S.C. § 1915(a). Doc. 2. However, 28 U.S.C. § 1915(g) directs that 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.

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

more occasions had civil actions or appeals dismissed as frivolous, as malicious, for failure to state

a claim, 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 by Dorsey include: (1) Dorsey v.

Clark, Civil Action No. 2:05-CV-892-MEF-VPM (M.D. Ala. 2005) (dismissing complaint under

28 U.S.C. § 1915(e)(2)(B)(i-iii)); (2) Dorsey v. Meeks, Civil Action No. 2:09-654-ID-WC (M.D.

Ala. 2009) (dismissing complaint under 28 U.S.C. § 1915(e)(2)(B)(i-iii)); and (3) Dorsey v. 22nd

Judicial Branch, Civil Action No. 2:19-CV-751-ECM-SRW (M.D. Ala. 2019) (dismissing

complaint under 28 U.S.C. § 1915(e)(2)(B)(i-iii)).

Since Dorsey 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

1In Rivera v. Allin, 144 F.3d 719, 731, cert. denied, 524 U.S. 978, 119 S.Ct. 27 (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.” The Court further determined that the language of § 1915(g)

makes it clear that the three strikes provision applies to claims dismissed prior to the effective date of the

PLRA and, therefore, does not violate the Ex Post Facto Clause. Id. at 728-730; Medberry v. Butler, 185

F.3d 1189, 1192 (11th Cir. 1999). 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)

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

2. This case be DISMISSED without prejudice for Plaintiff’s failure to pay the full filing

fee upon the initiation of this case.

It is further

ORDERED that on or before July 29, 2020, 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 15th day of July 2020.

/s/ Charles S. Coody

CHARLES S. COODY

UNITED STATES MAGISTRATE JUDGE