Alverson v. Hamm (INMATE 2)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

RODNEY ALVERSON, #132 431, )

)

Plaintiff, )

)

v. ) CASE NO. 2:22-CV-392-MHT-CSC

) [WO]

J. HAMM, et al., )

)

Defendants. )

RECOMMENDATION OF THE MAGISTRATE JUDGE

I. INTRODUCTION

Pro se Plaintiff Rodney Alverson files this Complaint under 42 U.S.C. § 1983. Due

to having impaired vision and being unable to see small numbers on a combination lock,

an eye doctor at the Bullock Correctional Facility issued Alverson a medical profile for a

permanent key lock in October of 2021. Alverson received the key lock on June 27, 2022.

He files suit alleging Defendants exhibited deliberate indifference to his serious medical

needs by delaying his receipt of the key lock. The eight-month delay in receiving the key

lock, Alverson claims, subjected him to the hardship of not being able to secure his property

properly resulting in the loss of some property during the relevant time period. For relief,

Alverson requests declaratory relief, punitive damages, costs, and trial by jury. Docs. 1, 1-

1, 1-2.

II. DISCUSSION

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).

Alverson has filed numerous civil actions in the federal courts of Alabama. See

https://pacer.login.uscourts.gov. Court records establish that in three cases Alverson was

granted leave to proceed in forma pauperis under 28 U.S.C. § 1915(a). The cases were

dismissed for the failure to state a claim on which relief could be granted. Alverson was

notified in those cases that the dismissals constitute “strikes” under 28 U.S.C. § 1915(e).2

The cases on which this Court relies in finding a § 1915(g) violation are: (1) Alverson v.

Jefferson Co., Alabama, Case No. 2:08-cv-363-SLB-JEO (N.D. Ala. 2009) (complaint

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).

dismissed for failure to state a claim); (2) Alverson v. Microsoft Corporation, Case No.

2:10-cv-2696-LSC-JEO (N.D. Ala. 2011) (complaint dismissed for failure to state a claim);

and (3) Alverson v. Microsoft Corporation, Case No. 2:11-cv-526-AKK-JEO (N.D. Ala.

2011) (complaint dismissed for failure to state a claim). This Court concludes these

summary dismissals place Alverson in violation of 28 U.S.C. § 1915(g).

“General allegations that are not grounded in specific facts which indicate that

serious physical injury is imminent are not sufficient to invoke the exception to § 1915(g).”

Niebla v. Walton Correctional Inst., 2006 WL 2051307, *2 (N.D.Fla. July 20, 2006) (citing

Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). “The plaintiff must allege and

provide specific fact allegations of ongoing serious physical injury, or a pattern of

misconduct evidencing the likelihood of imminent serious physical injury, and vague

allegations of harm and unspecific references to injury are insufficient.” Id. (internal

quotations omitted) (citing Martin, 319 F.3d at 1050; White v. State of Colorado, 157 F.3d

1226, 1231 (10th Cir. 1998)).

Since Alverson has 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 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) (finding 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, Alverson files suit challenging a delay in his receipt of a key lock to secure

his personal property. 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) (holding that “[b]y 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.”). Consequently, Alverson is not entitled to

proceed in forma pauperis in this matter due to his violation of the “three strikes” provision

of 28 U.S.C. § 1915(g).

Based on the foregoing and Alverson’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)

(explaining that “the 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).

III. CONCLUSION

Accordingly, the undersigned Magistrate Judge RECOMMENDS 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 ORDERED that by July 26, 2022, the parties may file objections to this

Recommendation. The parties must specifically identify the factual findings and legal

conclusions in the Recommendation to which objection is made. Frivolous, conclusive or

general objections will not be considered by the Court. This Recommendation is not a final

order and, therefore, it is not appealable.

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

accordance with 28 U.S.C. § 636(b)(1) will bar a party from a de novo determination by

the District Court of legal and factual issues covered in the Recommendation and waive

the right of the party to challenge on appeal the District Court’s order based on unobjected-

to factual and legal conclusions accepted or adopted by the District Court except upon

grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir.

1982); 11TH Cir. R. 3–1. See Stein v. Reynolds Sec., Inc., 667 F.2d 33 (11th Cir. 1982);

see also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc).

Done, this 12th day of July 2022.

/s/ Charles S. Coody

CHARLES S. COODY

UNITED STATES MAGISTRATE JUDGE