ORDER AND RECOMMENDATION OF THE MAGISTRATE JUDGE
WALLACE CAPEL, Jr., Magistrate Judge.
On July 24, 2013, Plaintiff, an inmate incarcerated at the Easterling Correctional Facility located in Clio, Alabama, filed the instant civil rights action. He requests leave to proceed in this action in forma pauperis. See 28 U.S.C. § 1915(a).
Pursuant to the directives of 28 U.S.C. § 1915(g), a prisoner is not allowed to 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."
I. DISCUSSION
The undersigned takes judicial notice of federal court records
Plaintiff brings this civil rights action alleging that false and/or erroneous information exists in his prison inmate file which resulted in him being denied parole and/or community custody in June 2013. Plaintiff seeks trial by jury and an order directing Defendants to remove the false, erroneous, and/or prejudicial information from his prison file, that he immediately be granted parole or reconsidered for parole, and that he be awarded court costs. (Doc. No. 1.)
The court has carefully reviewed the claims presented in the instant action. Even construing all allegations in favor of Plaintiff, his claims in this complaint do not entitle him to avoid the bar of § 1915(g) because they do not allege nor in any way indicate that he was "under imminent danger of serious physical injury" at the time he filed this cause of action as is required to meet the imminent danger exception to the application of 28 U.S.C. § 1915(g). Medberry v. Butler, 185 F.3d 1189 (11th Cir. 1999). See 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, the court concludes that Plaintiff's motion for leave to proceed in forma pauperis is due to be denied and this case dismissed without prejudice for Plaintiff's failure to pay the requisite $350.00 filing fee upon the initiation of this cause of action. Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (emphasis in original) ("[T]he proper procedure is for the district court to dismiss the complaint without prejudice when it denies the prisoner leave to proceed in forma pauperis pursuant to the provisions of § 1915(g)" because the prisoner "must pay the filing fee at the time he initiates the suit.").
II. CONCLUSION
In light of the foregoing, it is
ORDERED that the motion for leave to proceed in forma pauperis filed by Plaintiff on July 24, 2013 (Doc. No. 2) is DENIED.
It is the RECOMMENDATION of the Magistrate Judge that 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 the parties are DIRECTED to file any objections to the Recommendation
Failure to file written objections to the proposed findings and advisements in the Magistrate Judge's Recommendation shall bar the party from a de novo determination by the District Court of issues covered in the Recommendation and shall bar the party from attacking on appeal factual findings in the Recommendation 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). 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) (adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981).
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