1

On August 5, 2009, this Court allowed Plaintiff to amend

his Complaint and add Nurse Hardin as a Defendant in this action. 

(Doc. 20). However, Nurse Hardin’s service papers have been

returned to this Court. (Doc. 29). On December 1, 2009,

Plaintiff filed a Motion for a Default Judgment against Nurse

Hardin. (Doc. 32). This Motion is DENIED as moot, however, as

this action is due to be dismissed. 

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DARRYL RIGGINS, # 184051, :

Plaintiff, :

vs. : CIVIL ACTION 08-00157-KD-B

ROBERT BARNES, M.D., et al., :

Defendants. :

REPORT AND RECOMMENDATION

Darryl Riggins, an Alabama prison inmate proceeding pro se and

in forma pauperis, filed the instant 42 U.S.C. § 1983 action, which

has been referred to the undersigned for a report and

recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule

72.2(c)(4). For the reasons set forth below, it is recommended

that this action be dismissed without prejudice pursuant to 28

U.S.C. § 1915(g). 

On March 21, 2008, Plaintiff filed his 42 U.S.C. § 1983

Complaint against Defendants Dr. Robert Barnes, Crystal Stabler,

R.N., and Nurse Nabb,1

 together with a motion to proceed without

Case 1:08-cv-00157-KD-B Document 36 Filed 01/05/10 Page 1 of 15
2

Plaintiff initially filed his Complaint on March 21, 2008,

but used outdated forms. As a result, on April 10, 2008, this

Court ordered Plaintiff to file using current forms. Plaintiff

did so on April 21, 2008. (Docs. 3, 4). 

2

prepayment of fees.2

 (Docs. 1, 2). On April 10, 2008, this Court

ordered Plaintiff to refile his Complaint and motion to proceed

without prepayment of fees on this Court’s forms, which Plaintiff

did on April 21, 2008. (Docs. 3, 4, 5). On August 5, 2009, this

Court granted Plaintiff’s motion to proceed without prepayment of

fees. (Doc. 20). However, given this recommendation and for the

reasons set forth herein, the grant of in forma pauperis status is

hereby REVOKED. 

Title 28 U.S.C. § 1915(g) prohibits a prisoner from

proceeding in forma pauperis in civil actions under certain

circumstances. It 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 the prisoner is under imminent danger

of serious physical injury.

28 U.S.C. § 1915(g).

Under § 1915(g), “if a prisoner has had three or more cases or

appeals dismissed for one of the recited reasons, he cannot proceed

in forma pauperis.” Doss v. Henry, 2008 WL 5231863, *1 (N.D. Fla.

Case 1:08-cv-00157-KD-B Document 36 Filed 01/05/10 Page 2 of 15
3

The Complaint form provided to Riggins by this Court

required him to list his litigation history. (Doc. 4, Sections

IB, IC). Riggins notified the Court of a single action pending

in the federal court system. This Court’s research, however, has

revealed a minimum of nineteen other lawsuits filed by Riggins in

the United States District Courts for the Southern, Middle, and

Northern Districts of Alabama alone. Rule 11(b) of the Federal

Rules of Civil Procedure “forbids lying in pleadings, motions,

and other papers filed with the court.” Zocaras v. Castro, 465

F.3d 479, 484 (11th Cir. 2006). “Rule 11(c) provides for

sanctions concerning misrepresentations made in papers filed with

the court under Rule 11(b).” Id. at 490; Fed. R. Civ. P. 11(c). 

Rule 41(b) “expressly authorizes the involuntary dismissal of a

claim for Plaintiff’s failure to abide by court orders or the

Federal Rules of Civil Procedure.” Zocaras, 465 F.3d at 490

(citing State Exch. Bank v. Hartline, 693 F.2d 1350, 1352 (11th

Cir. 1982)). 

3

2008). “A prisoner who is no longer entitled to proceed in forma

pauperis must pay the filing fee at the time he initiates the suit,

and his failure to do so warrants dismissal without prejudice.”

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

Vanderberg v. Donaldson, 259 F.3d 1321, 1324 (11th Cir. 2001)).

“The only exception to this is if the prisoner alleges he is ‘under

imminent danger of serious physical injury.’” Id. (citing 28

U.S.C. § 1915; Brown v. Johnson, 387 F.3d 1344 (11th Cir. 2004);

Rivera v. Allin, 144 F.3d 719, 723 (11th Cir. 1998), abrogated on

other grounds by Jones v. Bock, 549 U.S. 199 (2007)). 

In reviewing Riggins’ Complaint, the Court discovered from the

records of the United States District Courts for the Southern,

Middle, and Northern Districts of Alabama that while incarcerated,

Riggins has on at least three occasions had 42 U.S.C. § 1983

actions dismissed pursuant to 28 U.S.C. § 1915 (g).3 Those actions

Case 1:08-cv-00157-KD-B Document 36 Filed 01/05/10 Page 3 of 15
Additionally, “the power of a court to dismiss a claim is

inherent in a trial court’s authority to enforce its orders and

ensure prompt disposition of legal actions.” Zocaras, 465 F.3d

at 490 (citing Link v. Wabash R.R. Co., 370 U.S. 626, 630-31

(1962)). For future reference, Riggins is cautioned that

providing false or misleading responses to this Court will not be

tolerated and will result in sanctions including, but not limited

to, dismissal of the action. See Hood v. Tompkins, 197 Fed.

Appx. 818, 819 (11th Cir. 2006) (Eleventh Circuit affirmed the

dismissal of a prisoner’s § 1983 complaint where the plaintiff

lied on the complaint form about his prior filing history);

Rivera v. Allin, 144 F.3d 719, 731 (11th Cir. 1998) (noting that

the district court did not abuse its discretion by dismissing an

action without prejudice where plaintiff “had lied under penalty

of perjury about the existence of a prior lawsuit”), abrogated on

other grounds by Jones v. Bock, 549 U.S. 199 (2007); Wilson v.

James, 2009 WL 763563, *3 n.4 (S.D. Ala. 2009) (“[L]ying to the

Court about the existence of prior lawsuits is a sufficient basis

for dismissing a civil action.”).

4

The United States District Court for the Middle District of

Alabama dismissed the actions of Riggins v. Robinson, et al., CA

04-0948 (M.D. Ala. Jan. 10, 2005), and Riggins v. McDonnell, et

al., CA 04-0130 (M.D. Ala. Dec. 2, 2004), because Plaintiff did

not pay the full filing fee when he initiated these actions as

required by § 1915(g). In concluding that § 1915(g) applied to

these two actions, the Court for the Middle District relied on

its three actions, which are referenced in the body of this

recommendation. Even though the docket sheet in CA 99-0722 does

not contain the explicit language that is ordinarily seen

indicating that the action was dismissed on one of the grounds

found under § 1915(e)(2)(B), the Court for the Middle District

noted that the docket itself reflected that CA 99-0722 qualified

as such a dismissal. And it appears to this Court that from the

activity reflected on the docket sheet in CA 99-722, i.e., no

service on the Defendants, the dismissal was based on a ground

4

are as follows: Riggins v. Hilbert, et al., CA 02-2184 (N.D. Ala.

Feb. 13, 2003); Riggins v. Coody, CA 99-1230 (M.D. Ala Nov. 23,

1999); Riggins v. Hightower, et al., CA 99-0952 (M.D. Ala. Apr. 7,

2000); Riggins v. Hightower, et al., CA 99-0722 (M.D. Ala. Sept.

13, 1999),4 aff’d (11th Cir. Sept. 27, 2000).

Case 1:08-cv-00157-KD-B Document 36 Filed 01/05/10 Page 4 of 15
under § 1915(e)(2)(B).

5

For screening purposes, the Court looks at the time of the

filing of Riggins’ initial Complaint, not the Amended Complaint

that he subsequently filed. Because Riggins did not date his

Complaint, nor his application to proceed in forma pauperis, the

undersigned has looked to the date his application to proceed in

forma pauperis was signed by jail personnel.

5

Because Riggins has had at least three actions that were

dismissed as frivolous, this action can only proceed if he meets §

1915(g)’s exception, which requires that at the time of filing, the

prisoner was “under imminent danger of serious physical injury.”

Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999) (holding

that the plaintiff must face imminent danger of serious physical

injury at the time the complaint is filed, not at a prior time).

Thus, the Court’s focus is on the period of time during which the

Complaint was filed. In the instant case, the filing of Riggins’

Complaint occurred between March 18, 2008, when his application to

proceed in forma pauperis was signed by jail personnel (Doc. 2 at

4), and March 21, 2008, when this Court received his Complaint.5

(Doc. 1). Riggins’ allegations, however, fail to indicate that he

was “under imminent danger of serious physical injury” at the time

of his filing. 

Riggins, an inmate at Holman Correctional Facility (“Holman”),

filed this action asserting a claim for inadequate medical

treatment relating to the alleged denial of nebulizer treatments to

Case 1:08-cv-00157-KD-B Document 36 Filed 01/05/10 Page 5 of 15
6

The Court notes that Riggins made a nearly identical claim

in 2004, likewise alleging that he was being denied breathing

treatments for his asthma while incarcerated at Kilby

Correctional Facility. See Riggins v. McDonnell, et al., CA 04-

945 (M.D. Ala. Jan. 5, 2005). In dismissing the action, the

court noted that Riggins was receiving continuous medical care

and found Plaintiff clearly was not “under imminent danger of

serious physical injury” at the time he filed the complaint. 

6

him for his asthma.6 (Doc. 4). In his Complaint, Riggins claims

that Defendants Nurses Stabler and Nabb initially denied him his

prescribed nebulizer treatments for asthma, and then following his

complaints, that Dr. Barnes discontinued the treatments altogether.

(Doc. 4 at 4-6). Riggins complains that Nurse Stabler advised him

that he did not need the nebulizer treatments and that he would

instead be placed on two different inhalers, but Riggins believes

that the use of two asthma inhalers is not sufficient treatment for

his condition. (Id. at 4-5). Riggins is seeking a declaration

that Defendants’ actions violated his rights, an injunction,

compensatory and punitive damages in the amount of fifteen thousand

dollars, plus costs, and any additional relief that this Court may

deem appropriate. (Id. at 7). 

In addition to the parties’ pleadings, this Court has reviewed

Riggins’ medical records from Holman Correctional Facility, as well

as those from North Baldwin Infirmary, for the time period

surrounding the filing of Plaintiff’s Complaint. (Doc. 15, Exhibit

A; Doc. 18). Following a thorough review of those records, the

Court is satisfied that Riggins was not “under imminent danger of

Case 1:08-cv-00157-KD-B Document 36 Filed 01/05/10 Page 6 of 15
7

Riggins transferred to Holman from Donaldson Correctional

Facility in March 2008. (Doc. 4 at 4). 

7

serious physical injury” at the time of his filing this lawsuit.

Riggins’ medical records reflect that on March 4, 2008, he was

evaluated in the Health Care Unit upon his initial arrival at

Holman.7

 (Doc. 15, Exhibit A at CMS079). Riggins had been

previously diagnosed with asthma, and was, at the time of his

arrival at Holman, taking twelve different medications which

included several medications related to his asthmatic condition.

The medications prescribed to treat Plaintiff’s asthma included a

Qvar inhaler, an Albuterol nebulizer, Singulair and a proventil

inhaler. (Doc. 15, Dr. Barnes Affidavit at 3-4, Ex. A at CMS003).

Upon Riggins’ transfer to Holman, Dr. Barnes continued Riggins’

prior prescriptions for breathing treatments, as well as the other

medications. (Doc. 15, Dr. Barnes Affidavit at 4). 

According to Dr. Barnes, an Albuterol nebulizer treatment

provides a more potent form of inhalant medication for times when

a patient experiences a significant episode of respiratory

distress. (Id., Dr. Barnes Affidavit at 5). “Currently accepted

standards of care mandate that Albuterol nebulizer treatments

should not be provided on a routine basis because of concerns

regarding its weakening of a patient’s respiratory system, unless

warranted by a significant respiratory condition.” (Id.)

According to Dr. Barnes, a nebulizer treatment is “warranted in

Case 1:08-cv-00157-KD-B Document 36 Filed 01/05/10 Page 7 of 15
8

those instances when a patient demonstrates clear signs of

respiratory distress such as wheezing or when a patient

demonstrates a poor rate of oxygen saturation, meaning an oxygen

saturation rate of less than 96%.” (Id.) 

Riggins was evaluated by Nurse Nabb following a request for a

breathing treatment on March 10, 2008. After testing Riggins’

oxygen saturation and a physical examination, Nurse Nabb concluded,

based on his oxygen saturation rate of 99% and the absence of other

symptoms, that a breathing treatment was not appropriate on that

occasion. (Doc. 15, Dr. Barnes Affidavit at 11; Nurse Nabb

Affidavit at 3). Subsequent thereto, Dr. Barnes discontinued the

Albuterol Nebulizer breathing treatments for a brief period. (Doc.

15, Dr. Barnes Affidavit at 11-12). On March 16, 2008, Dr. Barnes

was contacted by telephone by a member of Holman’s medical staff

and informed that Riggins had complained of an episode of

respiratory distress. (Id.) Dr. Barnes instructed the medical

staff to place Riggins on a nasal cannula providing oxygen at a

rate of two liters per minute and to observe his condition for a

period of two hours. Further instructions were given to the

medical staff on how to proceed should Riggins’ condition not

improve during that observation period. Because Riggins’ condition

did improve, no further treatment was provided at that time.

Riggins was instructed to notify the medical staff immediately if

he experienced any shortness of breath. (Id.) 

Case 1:08-cv-00157-KD-B Document 36 Filed 01/05/10 Page 8 of 15
8

It is noted in the North Baldwin Hospital records that

there were no witnesses to Plaintiff’s “seizure activity,” that

the EMS denied seeing any seizure activity, and that there had

been no such problems or symptoms since arriving at the hospital. 

(Doc. 18, Attachment at CMS090). 

9

Medical records submitted by Riggins reflect that later on

March 16, 2008, he was admitted to the North Baldwin Infirmary for

alleged seizure activity, not respiratory issues.8

 (Doc. 18,

Attachment at CMS076, CMS090). On March 17, 2008, Riggins was

examined multiple times by various hospital medical staff,

including doctors and nurses, and the records indicate that his

breathing sounds were normal, and that there was no respiratory

distress or wheezing. (Id. at CMS082, CMS086, CMS090-91). On

March 18, 2008, Riggins was returned to the Holman Health Unit,

where it is noted in the records that he was “snoring,” and that

“vitals [were] stable.” (Id. at CMS099). On March 19, 2008,

Riggins legibly printed a medical request form seeking medical

attention for his sore tongue, stating that he bit it during his

“seizure attack” on March 18, 2008. Riggins complained that he

could not chew on that side of his mouth but made no complaints of

respiratory or breathing issues. (Doc. 15, Ex. A at CMS072). 

In evaluating whether a prisoner’s allegations fall within the

exception to the application of 28 U.S.C. § 1915(g), the Eleventh

Circuit has directed that “the issue is whether ... [the]

complaint, as a whole, alleges imminent danger of serious physical

injury.” Brown v. Johnson, 387 F.3d 1344, 1350 (11th Cir. 2004).

Case 1:08-cv-00157-KD-B Document 36 Filed 01/05/10 Page 9 of 15
10

In Skillern v. Paul, 202 Fed. Appx. 343, 344 (11th Cir. 2006), the

Court rejected an inmate’s request that it “‘presume imminent

danger’ whenever a prisoner complains of a medical issue.” In

affirming the district court’s dismissal of the prisoner’s

complaint pursuant to 28 U.S.C. § 1915(g), the Eleventh Circuit

noted that the prisoner had alleged that the deprivation of his

heart medication might result in serious injury, but that he, in

his vague statements, had failed to allege any description of the

medical condition requiring the medication or that he had even

suffered any actual physical injury as a result of not receiving

the medication. Id.; cf. Brown v. Johnson, 387 F.3d 1344, 1350

(11th Cir. 2004) (finding that prisoner with HIV and hepatitis had

alleged imminent danger of serious physical injury when prisoner

brought claim that his medical treatment had been abruptly stopped

and that as a result he “suffered prolonged skin and newly

developed scalp infections, severe pain in the eyes and vision

problems, fatigue and prolonged stomach pains” and that he would

die earlier if not treated). 

A review of Riggins’ Complaint reflects that he was not “under

imminent danger of serious physical injury” at the time of filing

this action. Riggins was receiving medical treatment, and although

he complains about the manner and sufficiency of the treatment,

Riggins fails to show the Court any injury or damage that he

suffered as a result of the treatment. A statement by Riggins that

Case 1:08-cv-00157-KD-B Document 36 Filed 01/05/10 Page 10 of 15
9

Interestingly, on March 26, 2008, Riggins filed a separate

action in the United States District Court for the Middle

District of Alabama, which action was subsequently transferred to

this Court, wherein Plaintiff alleged that inmates in segregation

at Holman were being over-medicated by Defendants Richard Allen,

Warden Culliver, Warden Folks, W. Bishop, Mr. Myers, C.M.S., Dr.

Barnes, Ms. Kabler, R.N., and D.O.N. (Riggins v. Allen, et al.,

CA 08-00195 (S.D. Ala May 25, 2008). According to Riggins, the

inmates were being given too much medication and being instructed

to take half and save half for later, which presented not only a

danger but also a potential disciplinary charge, as inmates are

11

Defendants were deliberately indifferent to his serious medical

need is not sufficient to show imminent danger of serious physical

injury. (Doc. 18 at 3). Moreover, a complete review of Riggins’

medical records from Holman also indicates that at the time he

filed this action in March, he was not “under imminent danger of

serious physical injury.” In fact, Riggins’ medical records from

Holman, as well as from the free world hospital, indicate the

opposite. 

Looking at the record, Riggins’ application to proceed in

forma pauperis in this action was signed by jail personnel on March

18, 2008, one day before Plaintiff complained of a sore tongue and

nothing more. (Doc. 15, Ex. A at CMS072). In the days immediately

preceding, Plaintiff was hospitalized as a result of an alleged

seizure, with no respiratory problems noted during any examinations

performed by the medical staff at the hospital. (Doc. 18,

Attachment at CMS082, CMS086, CMS090-91). Plaintiff’s allegations

fail to indicate that he was “under imminent danger of serious

physical injury” at the time of filing this action.9

Case 1:08-cv-00157-KD-B Document 36 Filed 01/05/10 Page 11 of 15
not supposed to keep medication in their possession. (Id., Doc.

1, Complaint at 3). Riggins’ Complaint was dismissed as he did

not show that he was “under imminent danger of serious physical

injury” at the time of the filing of the action. (Id., Docs. 10,

11). 

12

“The fact that Plaintiff may disagree with the medical

treatment that he was receiving fails to show even a constitutional

violation, much less that he was actually in danger of serious

physical injury. See, e.g., Adams v. Poag, 61 F.3d 1537, 1545 (11th

Cir. 1995) (“[T]he question of whether governmental actors should

have employed additional diagnostic techniques or forms of

treatment ‘is a classic example of a matter for medical judgment’

and therefore not an appropriate basis for grounding liability

under the Eighth Amendment.”) (quoting Estelle v. Gamble, 429 U.S.

97, 107 (1976)); Trotter v. Corr. Med. Serv., Inc., 2008 WL 2225696

at *9 (S.D. Ala. 2008) (“It is well-established that a difference

in opinion or a disagreement between an inmate and prison officials

as to what medical care is appropriate for his particular condition

does not state a claim for deliberate indifference to medical

needs.”) (citations omitted). 

“In this Circuit, a prisoner who is no longer entitled to

proceed in forma pauperis must pay the filing fee at the time he

initiates the suit, and failure to do so warrants dismissal without

prejudice.” Doss, 2008 WL 5231863, *2 (N.D. Fla. 2008); Dupree v.

Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (“[T]he proper

Case 1:08-cv-00157-KD-B Document 36 Filed 01/05/10 Page 12 of 15
13

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 three strikes provision of §

1915(g).”). Because Riggins did not pay the $350.00 filing fee at

the time that he filed this action and because he does not meet the

“under imminent danger of serious physical injury” exception to §

1915(g), Riggins’ action is due to be dismissed without prejudice.

Accordingly, it is recommended that this action be dismissed

without prejudice pursuant to 28 U.S.C. § 1915(g).

The instructions that follow the undersigned’s signature

contain important information regarding objections to the report

and recommendation of the Magistrate Judge.

DONE this 5th day of January, 2010.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

Case 1:08-cv-00157-KD-B Document 36 Filed 01/05/10 Page 13 of 15
10The Court’s Local rules are being amended to reflect the

new computations of time as set out in the amendments to the

Federal Rules of Practice and Procedure, effective December 1,

2009.

14

MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND 

RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND

FINDINGS CONCERNING NEED FOR TRANSCRIPT

l. Objection. Any party who objects to this recommendation, or

anything in it, must, within fourteen 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 days10 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.

Case 1:08-cv-00157-KD-B Document 36 Filed 01/05/10 Page 14 of 15
15

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.

Case 1:08-cv-00157-KD-B Document 36 Filed 01/05/10 Page 15 of 15