IN THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DARIUS CHAMBERS, :

Plaintiff, :

vs. : CIVIL ACTION 04-0761-BH-C

JERRY L. FERRELL, et al., : 

Defendants. :

REPORT AND RECOMMENDATION

This § 1983 action filed by an Alabama prison inmate proceeding pro se, together

with a motion to proceed without prepayment of fees, 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 may be granted, unless

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1An examination of the federal courts’ Pacer service indicates plaintiff has filed 31 actions. 

Cases pending in this Court for plaintiff are Civil Action Nos. 04-0089-BH-C and 04-0760-BH-L. In

04-0089-BH-C, plaintiff alleges that he has been denied treatment for his gender dysphoria and seeks

treatment for this condition. In 04-0760-BH-L, defendant Ferrell transferred Jonathan L. Jones,

plaintiff’s companion and legal assistant, to another prison in retaliation for their filing a lawsuit

challenging Alabama’s ban on same-sex marriage, and placed plaintiff in segregation in retaliation for his

advocacy of human rights and the gay community.

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the prisoner is under imminent danger of serious physical

injury.

During the screening of the plaintiff’s complaint (Doc. 1), the Court discovered

after examining the dockets of Alabama’s federal district courts that plaintiff previously

had four actions dismissed on 28 U.S.C. § 1915(e)(2)(B) grounds, namely, Chambers v.

Campbell, et al., 04-0788 (M.D. Ala. Sept. 28, 2004); Chambers v. Brown, et al., 03-0894

(N.D. Ala. Aug. 7, 2003); Chambers v. Campbell, et al., 98-0601 (M.D. Ala. Aug. 24,

1998); and Chambers v. City of Selma, Ala., et al., 90-0062-BH-C (S.D. Ala. Sept. 19,

1990).1 

Furthermore, in the instant complaint plaintiff alleges the honor dorm with its many

privileges violates the First Amendment because it is a faith-based dorm where an inmate is

required to learn about Christianity and Islam and to espouse religion. Plaintiff alleges he

was told he could not be in the dorm as long as there was a question about his gender and

defendant Eskaleini would not allow plaintiff to wear his Buddhist medallion on a chain. 

Plaintiff’s allegations, however, do not demonstrate that he 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

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2Plaintiff signed the complaint on October 20, 2004, and the court received the complaint on

October 22, 2004 (Doc. 1).

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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 action2 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. Dupree v. Palmer, 284 F.3d

1234, 1236 (11thCir. 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).

The attached sheet contains important information regarding objections to the report

and recommendation.

DONE this 12th day of April, 2005.

s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND

RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND

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FINDINGS CONCERNING NEED FOR TRANSCRIPT

l. 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 this 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

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

case 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.

s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

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