In this motion, Noe states that he has no means to pay for court costs and requests that he be allowed 1

to proceed without prepayment of such costs. The only manner in which Noe may proceed before this court

without prepayment of fees is upon the granting of in forma pauperis status under the provisions of 28 U.S.C.

§ 1915.

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

WOODBURCK NOE, #148475, )

)

 Plaintiff, )

)

v. ) CIVIL ACTION NO. 2:06-CV-747-MEF

) [WO]

)

ALABAMA DEPT. OF CORRECTIONS, et) al.,

)

 Defendants. )

ORDER AND RECOMMENDATION OF THE MAGISTRATE JUDGE

On August 21, 2006, Woodburck Noe [“Noe”], a state inmate and frequent litigant in

this court, filed a motion and affidavit for indigency treatment which the court construes as

a motion for leave to proceed in forma pauperis pursuant to the provisions of 28 U.S.C. §

1915(a). Pursuant to the directives of 28 U.S.C. § 1915(g), a prisoner is not allowed to bring 1

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

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In Rivera v. Allin, 144 F.3d 719, 731 (11 Cir. 1998), the Court determined that the “three strikes” 2 th

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 requisite dismissals are indicated on the docket sheets maintained by this court in the referenced 3

cases.

2

serious physical injury.” 

2

The records of this court establish that Noe, while incarcerated, has on at least seven

occasions had 42 U.S.C. § 1983 cases dismissed as frivolous, malicious, for failure to state

a claim and/or for asserting claims against defendants who were immune from suit pursuant

to the provisions of 28 U.S.C. § 1915. The cases on which the court relies in finding a

violation of the directives of § 1915(g) by Noe are as follows: (1) Noe v. McGraw, Civil

Action No. 2:95-CV-1195-T (M. D. Ala. 1995), (2) Noe v. James, Civil Action No. 2:94-CV928-T (M.D. Ala. 1994), (3) Noe v. Hunt, et al., Civil Action No. 2:94-CV-86-A (M.D. Ala.

1994), (4) Noe v. Boyd, et al., Civil Action No. 2:92-CV-1350-A (M.D. Ala. 1992), (5) Noe

v. Hunt, et al., Civil Action No. 2:92-CV-977-D (M.D. Ala. 1992), (6) Noe v. Hunt, et al.,

Civil Action No. 2:92-CV-711-H (M.D. Ala. 1992), and (7) Noe v. Hunt, et al., Civil Action

No. 2:92-CV-565-H (M.D. Ala. 1992). 

3

In the instant complaint, Noe presents a diary of alleged unconstitutional actions taken

against him and conditions of confinement which occurred during January and February of

2005at the Bullock County Correctional Facility. The complaint fails to demonstrate that

Noe was “under imminent danger of serious physical injury” at the time he filed this case as

Case 2:06-cv-00747-MEF-CSC Document 3 Filed 08/25/2006 Page 2 of 4
3

is required to meet the imminent danger exception to the application of 28 U.S.C. § 1915(g).

See Medberry v. Butler, 185 F.3d 1189 (11 Cir. 1999). Based on the foregoing, the court th

concludes that Noe’s motion for leave to proceed in forma pauperis is due to be denied and

this case dismissed without prejudice as Noe failed to pay the requisite filing fee upon the

initiation of this cause of action. Dupree v. Palmer, 284 F.3d 1234, 1236 (11 Cir.

th

2002)(emphasis in original) (“[T]he proper procedure is for the district court to dismiss the

complaint without prejudice wen 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.”). 

CONCLUSION

Accordingly, it is 

ORDERED that the motion for leave to proceed in forma pauperis filed by

Woodburck Noe on August 21, 2006 be and is hereby DENIED. Additionally, it is the

RECOMMENDATION of the Magistrate Judge that this case be dismissed without prejudice

for Noe’s failure to pay the full filing fee upon the initiation of this case. 

It is further 

ORDERED that on or before September 7, 2006 the parties may file objections to

the Recommendation. Any objections filed must specifically identify the findings in the

Magistrate Judge's Recommendation to which the party is objecting. Frivolous, conclusive

or general objections will not be considered by the District Court. The parties are advised

Case 2:06-cv-00747-MEF-CSC Document 3 Filed 08/25/2006 Page 3 of 4
4

that this Recommendation is not a final order of the court and, therefore, it is not appealable.

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 Securities, 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.

Done this 25 day of August, 2006. th

 /s/Charles S. Coody 

CHARLES S. COODY

CHIEF UNITED STATES MAGISTRATE JUDGE

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