IN THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

CARL A. PERRY, JR., :

Plaintiff, :

vs. : CIVIL ACTION 04-0778-BH-M

STATE OF ALABAMA, et al., : 

Defendants. :

REPORT AND RECOMMENDATION

This § 1983 action was filed by an Alabama prison inmate,

along with a Motion to Proceed Without Prepayment of Fees, and

was referred to the undersigned pursuant to 28 U.S.C. §

636(b)(1)(B) and Local Rule 72.2(c)(4) for appropriate action. 

It is the undersigned’s recommendation that Plaintiff’s Motion

to Proceed Without Prepayment of Fees (Doc. 2) be denied and

that this action be dismissed without prejudice pursuant to 28

U.S.C. § 1915(g). 

Section 1915(g) provides: 

In no event shall a prisoner bring a

civil action or appeal a judgment in a

civil action or proceeding under this

section [28 U.S.C. § 1915] if the prisoner

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

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1In addition to these identified actions, this Court’s old

records and the federal courts’ Pacer service computer records

show Plaintiff has filed 18 actions in the past. At this time

Plaintiff has another action pending on this Court’s docket,

Perry v. Naphcare, et al., 02-0508-BH-C, wherein he complains

about the lack of treatment for his hepatitis C.

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may be granted, unless the prisoner is

under imminent danger of serious physical

injury.

During the screening of Plaintiff’s Complaint and

Amendment (Docs. 1 & 4), the Court discovered after examining

the dockets of Alabama’s federal district courts that

Plaintiff previously had eight actions or appeals dismissed as

frivolous or for failure to state a claim upon which relief

can be granted, namely, Perry v. Hopper, et al., 98-0613 (N.D.

Ala.), appeal frivolous (11th Cir. Nov. 19, 1999); Perry v.

Bowen, et al., 86-0005-C-S (S.D. Ala. Feb. 14, 1986); Perry v.

Federal Government, 84-0332-C-B (S.D. Ala. Apr. 26, 1984);

Perry v. Brown, et al., 84-0002-H-B (S.D. Jan. 24, 1984),

appeal frivolous (11th Cir. June 7, 1984); Perry v. State of

Alabama, 83-0823-H-S (S.D. Ala.), appeal frivolous (11th Cir.

Jan. 31, 1984); Perry v. Purvis, 83-0651-C-S (S.D. Ala. July

13, 1983); and Perry v. State and Fed. Tax Div., et al., 82-

1026-C-B (S.D. Ala. Nov. 3, 1982).1 Furthermore, in

Plaintiff’s rambling Complaint and Amendment, his chief

complaint is about his conviction, despite references to

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2The Court notes that in regard to the reference to

hepatitis C, Plaintiff does not allege in the present

complaint that he has hepatitis C, even though he is

litigating a claim for lack of treatment for his hepatitis C

condition in Perry v. Naphcare, et al., 02-0508-BH-C.

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racial situations in prison, being locked-up, his hemorrhoids,

and lack of sun screen and treatment for hepatitis C.2 Even

though Plaintiff briefly asserts these other matters, his

requested relief - damages for his years of incarceration and

for the abuse he suffered during his incarceration, the grant

of a pardon, and the termination of “state employees” (Docs. 1

& 4) - supports the conclusion that this action is a challenge

to his conviction. Accordingly, the Court finds this action’s

allegations do not demonstrate that Plaintiff was “under

imminent danger of serious physical injury” at the time he

filed the complaint. Therefore, he cannot avail himself of

the exception to § 1915(g). Medberry v. Butler, 185 F.3d

1189, 1193 (11th Cir. 1999) (holding the plaintiff must face

imminent danger of serious physical injury at the time the

complaint is filed, not at a prior time). 

Because Plaintiff did not pay the $150.00 at the time he

filed this action and has not met § 1915(g)’s exception that

he is “under imminent danger of serious physical injury,”

Plaintiff’s action is due to be dismissed without prejudice. 

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Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002)

(holding the action must be dismissed without prejudice when

an inmate who is subject to 28 U.S.C. § 1915(g) does not pay

the full filing fee at the time he initiates the action). 

Accordingly, it is recommended that Plaintiff’s Motion to

Proceed Without Prepayment of Fees (Doc. 2) be denied and that

this action be dismissed without prejudice pursuant to 28

U.S.C. § 1915(g).

MAGISTRATE JUDGE’S EXPLANATION OF PROCEDURAL RIGHTS

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation

or anything in it must, within ten days of the date of service

of this document, file specific written objections with the

clerk of court. Failure to do so will bar a de novo

determination by the district judge of anything in the

recommendation and will bar an attack, on appeal, of the

factual findings of the magistrate judge. See 28 U.S.C. §

636(b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir.

1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B,

1982)(en banc). The procedure for challenging the findings

and recommendations of the magistrate judge is set out in more

detail in SD ALA LR 72.4 (June 1, 1997), which provides that:

A party may object to a recommendation entered by a

magistrate judge in a dispositive matter, that is, a

matter excepted by 28 U.S.C. § 636(b)(1)(A), by

filing a “Statement of Objection to Magistrate

Judge’s Recommendation” within ten days after being

served with a copy of the recommendation, unless a

different time is established by order. The

statement of objection shall specify those portions

of the recommendation to which objection is made and

the basis for the objection. The objecting party

shall submit to the district judge, at the time of

filing the objection, a brief setting forth the

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party’s arguments that the magistrate judge’s

recommendation should be reviewed de novo and a

different disposition made. It is insufficient to

submit only a copy of the original brief submitted

to the magistrate judge, although a copy of the

original brief may be submitted or referred to and

incorporated into the brief in support of the

objection. Failure to submit a brief in support of

the objection may be deemed an abandonment of the

objection.

A magistrate judge’s recommendation cannot be appealed to

a Court of Appeals; only the district judge’s order or

judgment can be appealed.

2. Transcript (applicable where proceedings tape recorded). 

Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the

magistrate judge finds that the tapes and original records in

this action are adequate for purposes of review. Any party

planning to object to this recommendation, but unable to pay

the fee for a transcript, is advised that a judicial

determination that transcription is necessary is required

before the United States will pay the cost of the transcript.

DONE this 25th day of April, 2005.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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