The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
DARRYL D. RIGGINS, #184051, )
)
Plaintiff, )
)
v. ) CASE NO. 2:23-CV-84-MHT-CSC
) [WO]
PATRICE RICHIE JONES, et. al., )
)
Defendants. )
RECOMMENDATION OF THE MAGISTRATE JUDGE
I. INTRODUCTION
Pro se Plaintiff Darryl D. Riggins brings this 42 U.S.C. § 1983 Complaint against
multiple Defendants employed in various capacities by the Alabama Department of
Corrections alleging that they failed to protect him, treated him with deliberate indifference
and used excessive force against him by failing to provide him mental health treatment
after complaints of his intention to harm himself and a failed suicide attempt. Plaintiff’s
allegations of mental health issues apparently arose from his concern about being labeled
a “snitch” in 2020 while incarcerated, a resulting fear for his personal safety, and his failed
suicide attempt on January 22, 2023.
Specifically, Plaintiff claims as follows:
“Upon information and belief the mental health department here at Bullock
Correctional Facility have {sic} adopted practices and policies that weaponize its
medications and responsibilities to their patience {sic} to cause even more risk of
substantial harm as they conspire with ADOC officials to carry out these harms and
risk and this is an ongoing risk of serious harm.
(Doc. 1 at p. 22). As relief Plaintiff seeks compensatory and punitive damages and
injunctive and declaratory relief as follows:
Ordering Defendants, their successors, agents, employees, and all persons acting in
concert with them, to protect plaintiff from hostile inmates and officers and other
known enemies by placing plaintiff in Alabama Department of Corrections
protective custody unit at the Limestone Correctional Facility at least until
conclusion of these matters before this court on its face, implement an adequate
classification system segregating dangerous inmates from vulnerable inmates and
from officers. Implement an adequate mental health department that responds to
any and all inmates that’s suicidal or even claim to be suicidal at the Bullock
Correctional Facility and every prison in the state of Alabama Department of
Corrections. Increase staffing for mental health and officers at Bullock Correctional
Facility and every prison in the state of Alabama Department of Corrections to a
level adequate to protect the safety of inmates with serious mental illness, properly
train staff members to respond to emergencies like suicide attempts and threats of
danger to inmates from other staff members.
(Doc. 1 at pp. 24-25). In his complaint, Plaintiff fails to identify “hostile inmates and
officers and other known enemies” who pose a threat of imminent danger to him. He also
fails to state how the mental health policies at Bullock assist Plaintiff’s known enemies in
creating an imminent danger of physical injury to him or how the mental health policies
themselves put him at risk for future harm. Furthermore, he does not claim that he is
currently being deprived of any medically necessary medication or currently being forced
to take any medication against his will.
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).
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, 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:
Riggins v. Hightower, Middle District of Ala., Case No. 2:99-cv-0952-WHA-CSC; Riggins
v. Coody, Middle District of Ala., Case No. 2:99-cv-1230-MHT-SRW; Riggins v. Hilbert,
Northern District of Ala., Case No. 1:02-cv-2184-RDP-JEO; Riggins v. Allen, Northern
District of Ala., Case No. 2:08-cv-0014-RDP-JEO; Riggins v. Corizon, Southern District
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).
of Ala., Case No. 1:14-cv-542-KD-N; Riggins v. Corizon, Southern District of Ala., Case
No. 1:12-cv-578-WS-M.
Since Plaintiff 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 court is
focused upon whether the Plaintiff’s complaint as a whole establishes that he is under
“present imminent danger, as opposed to past danger.” Brown v. Johnson, 387 F.3d 1344,
1349 (11th Cir. 2004).
Upon careful review of the complaint, the court concludes that Plaintiff’s allegations
are premised upon his claims of a fear for his safety from unknown prison personnel and
unknown inmates due to him being labeled a snitch in 2020 and Defendants’ failure to
provide him mental health treatment to prevent him from doing himself harm in January
2023. These allegations are all premised upon “past danger” to Plaintiff, whether perceived
or real, and therefore do not meet the standard. Id. Indeed, the Plaintiff fails to identify
“hostile inmates and officers and other known enemies” who currently pose a threat of
imminent danger to him. He also fails to state how the mental health policies at Bullock
assist Plaintiff’s known enemies in creating an imminent danger of physical injury to him
or how the mental health policies themselves put him at risk for future harm. Furthermore,
he does not claim that he is currently being deprived of any medically necessary mental
health, or other, medication or is currently being forced to take any medication against his
will.
Accordingly, the court finds Plaintiff fails to demonstrate he “is under imminent
danger of serious physical injury” as is required to meet the exception allowing
circumvention of the directives contained in 28 U.S.C. § 1915(g). Consequently, Plaintiff
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 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)
(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, 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.
A party may file objections to the Recommendation by March 1, 2023. Any
objection filed must specifically identify the findings in the Recommendation to which a
party 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 February, 2023.
/s/ Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE