Currington v. Soltys (INMATE 2)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

SOUTHERN DIVISION

DEANDRE CURRINGTON, )

)

Plaintiff, )

)

v. ) CASE NO. 1:24-CV-550-MHT-CSC

)

SCOTT SOLTYS, )

)

Defendant. )

RECOMMENDATION OF THE MAGISTRATE JUDGE

I. INTRODUCTION

Plaintiff DeAndre Currington, an inmate at the Dale County Jail in Ozark, Alabama,

proceeding pro se, filed this action using this Court’s standard form for complaints brought

under 42 U.S.C. § 1983. Doc. 1. Plaintiff also moves to proceed in forma pauperis under

28 U.S.C. § 1915. Doc. 2. For the reasons below, the undersigned Magistrate Judge

RECOMMENDS that Plaintiff’s motion (Doc. 2) be DENIED and that his Complaint (Doc.

1) be DISMISSED without prejudice.

II. DISCUSSION

Under 28 U.S.C. § 1915(g), a prisoner may not bring a civil action in forma pauperis

if he “has, on 3 or more prior 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.” 28 U.S.C.

§ 1915(g). Consequently, an inmate in violation of the “three strikes” provision of §

1915(g) who is not under “imminent danger” of serious physical injury “must pay the filing

fee at the time he initiates suit.” Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002)

(emphasis in original). The Court should therefore dismiss a prisoner’s complaint without

prejudice when it “denies the prisoner leave to proceed in forma pauperis pursuant to the

three strikes provision of § 1915(g).” Id.

Plaintiff has filed many civil actions in federal court while incarcerated.1 Review of

court records establish that Plaintiff has accumulated at least three strikes under § 1915(g).2

See Currington v. Blackwell, Civil Action No. 1:15-cv-533-WKW-SRW (M.D. Ala. 2015)

(dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim for relief);

Currington v. Soltys, Civil Action No. 1:23-cv-157-RAH-CSC (M.D. Ala. 2023)

(dismissed under 28 U.S.C. § 1915A(b)(1) as malicious); and Currington v. Olson, No.

1:23-cv-457-ECM-KFP (M.D. Ala. 2023) (dismissed under 28 U.S.C. § 1915(e)(2)(B)(i)

as frivolous). These summary dismissals place Plaintiff in violation of 28 U.S.C. § 1915(g).

Since Plaintiff has three strikes, he cannot proceed in forma pauperis unless his

Complaint shows that he was in “imminent danger of serious physical injury” at the time

of filing. In assessing whether a plaintiff satisfies this burden, the Court looks at whether

the Complaint, as a whole, alleges such imminent danger. See Brown v. Johnson, 387 F.3d

1344, 1350 (11th Cir. 2004); O’Connor v. Sec’y, Fla. Dep’t of Corr., 732 F. App’x 768,

1 Available at https://pacer.login.uscourts.gov.

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. Munoz, __ F.4th __, 2024 WL

3682137, *4 (11th Cir., August 7, 2024).

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770-71 (11th Cir. 2018) (explaining that facts must not be asserted in a vague or conclusory

manner and must show that the inmate-plaintiff was in imminent danger of serious physical

injury at the time he filed his complaint). “General allegations … not grounded in specific

facts . . . indicat[ing] that serious physical injury is imminent are not sufficient to invoke

the exception to § 1915(g).” Niebla v. Walton Corr. Inst., No. 3:06CV275/LAC/EMT, 2006

WL 2051307, *2 (N.D. Fla. July 20, 2006) (citing Martin v. Shelton, 319 F.3d 1048, 1050

(8th Cir. 2003).

Plaintiff files suit alleging that in 2022 Officer Scott Soltys caused him to be falsely

arrested and falsely imprisoned in the Dale County Jail for six months. Doc. 1 at 2–3. The

Court has reviewed the claims in this action. Even construing all allegations in favor of

Plaintiff, his claims do not entitle him to avoid the bar of § 1915(g) because, as a whole,

they do not demonstrate he was under “imminent danger of serious physical injury” when

he filed this action as is required to meet the exception to application of 28 U.S.C. §

1915(g). See O’Connor v. Backman, 743 F. App’x 373, 375 (11th Cir. 2018) (citing Brown,

387 F.3d at 1350); 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)); Lewis v.

Sullivan, 279 F.3d 526, 531 (7th Cir. 2002) (explaining that the imminent danger exception

is available “for genuine emergencies,” where “time is pressing,” and “[w]hen a threat or

prison condition is real and proximate.”).

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Consequently, Plaintiff’s motion for leave to proceed in forma pauperis is due to be

denied and this Complaint is due to be dismissed without prejudice under 28 U.S.C. §

1915(g).

III. CONCLUSION

Accordingly, the undersigned Magistrate Judge RECOMMENDS that:

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

DENIED.

2. Plaintiff’s Complaint (Doc. 1) be DISMISSED without prejudice.

It is further ORDERED that by September 17, 2024, 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. The parties are

advised that this Recommendation is not a final order and is therefore not appealable.

Failure to file written objections to the Magistrate Judge’s 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 on grounds of plain error or manifest injustice. Resol. Tr. Corp.,

v. Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993); Henley v. Johnson, 885

F.2d 790, 794 (11th Cir. 1989); 11th CIR. R. 3-1.

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Done, this 3rd day of September 2024.

/s/ Charles S. Coody

CHARLES S. COODY

UNITED STATES MAGISTRATE JUDGE

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