1

It is hereby ORDERED that Plaintiff’s motion to proceed

without prepayment of fees be DENIED in light of the Court’s

findings herein. (Doc. 2). 

2 This term refers to a prisoner’s status under 28 U.S.C. §

1915(g) and applies to a prisoner who brings a civil action or

appeal without prepayment of fees or security therefor, after

having previously filed, while incarcerated, three or more

actions or appeals that were dismissed on the ground that they

were frivolous, malicious, or failed to state a claim upon which

relief could be granted. 

IN THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

TRACY G. ALLEN, AIS # 129732, :

Plaintiff, :

vs. : CIVIL ACTION 09-0838-CG-M

DR. ROBERT BARNES, :

Defendant. :

REPORT AND RECOMMENDATION

This 42 U.S.C. § 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 for a

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

and Local Rule 72.2(c)(4).1 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 December 29, 2009, Plaintiff, a previously adjudicated

“three striker,”2 filed his 42 U.S.C. § 1983 Complaint against

Case 1:09-cv-00838-CG-M Document 3 Filed 02/03/10 Page 1 of 10
2

Defendant, Dr. Robert Barnes. (Doc. 1 at 4). On that same date,

Plaintiff filed a motion to proceed without prepayment of fees. 

(Doc. 2). 

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 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(N.D. Fla. 2008) (unpublished). “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)).

In a previous action filed in this Court by Plaintiff, 

Allen v. Barnes, 2009 WL 1357383 (S.D. Ala. 2009), Plaintiff was

identified as having thirty-eight strikes, that is, thirty-eight

Case 1:09-cv-00838-CG-M Document 3 Filed 02/03/10 Page 2 of 10
3 The Court in Allen v. Barnes, 2009 WL 1357383 (S.D. Ala.

2009), identified the following actions of Plaintiff as having

been dismissed as frivolous: Allen v. Jones, et al., CA

90-0059-T-S (S.D. Ala. Mar. 31, 1992); Allen v. Edwards, et al.,

CA 90-0076-BH-C (S.D. Ala. Sept. 11, 1991); Allen v. Carver, et

al., CA 90-0214-CB-S (S.D. Ala. Sept. 20, 1991); Allen v. White,

et al., CA 90-0561 (N.D. Ala. June 28, 1990); Allen v. Patterson,

CA 90-0562 (N.D. Ala. June 26, 1990); Allen v. State of Alabama,

CA 90-1100 (N.D. Ala. Aug. 21, 1990); Allen v. Hunt, et al., CA

90-1101 (N.D. Ala. Aug. 21, 1990); Allen v. Norman, CA 91-0153

(N.D. Ala. May 29, 1991); Allen v. Allen, et al., CA 91-1705

(N.D. Ala. Nov. 26, 1991); Allen v. Hunt, et al., CA 91-1708

(N.D. Ala. Nov. 27, 1991); Allen v. White, et al., CA 91-1935

(N.D. Ala. Feb. 3, 1992); Allen v. Thigpen, et al., CA 91-2021

(N.D. Ala. Jan. 30, 1992); Allen v. Battles, et al., CA 91-2476

(N.D. Ala. Apr. 17, 1992); Allen v. Thigpen, CA 92-1623 (N.D.

Ala. Nov. 29, 1993); Allen v.. Chaplain, CA 93-119 (N.D. Ala.

Sept. 13, 1993); Allen v. Nagle, CA 93-897 (N.D. Ala. Sept. 1,

1993); Allen v. Blankenship, CA 93-1193 (N.D. Ala. Sept. 15,

1993); Allen v. Martin, CA 93-1801 (N.D. Ala. Mar. 2, 1994);

Allen v. Burton, et al., CA 93-1808 (N.D. Ala. Mar. 2, 1994);

Allen v. USPS, CA 93-1834 (N.D. Ala. Mar. 2, 1994); Allen v.

Tucker, CA 93-1929 (N.D. Ala. Dec. 28, 1993); Allen v. Champale,

CA 93-1931 (N.D. Ala. Dec. 27, 1993); Allen v. USPS, CA 93-1932

(N.D. Ala. Dec. 28, 1993); Allen v. Folsom, et al., CA 93-2229

(N.D. Ala. Apr. 1, 1994); Allen v. State of Alabama, CA 93-2272

(N.D. Ala. Apr. 4, 1994); Allen v. Nagle, CA 93-2350 (N.D. Ala.

Mar. 31, 1994); Allen v. Nagle, et al., CA 93-2399 (N.D. Ala.

Apr. 1, 1994); Allen v. DeLoach, et al., CA 93-T-1052-N (M.D.

Ala. Oct. 6, 1993); Allen v. Harrelson, et al., CA 93-H-1114-N

(M.D. Ala. Oct. 22, 1993); Allen v. Folsom, et al., CA

94-A-0288-N (M.D. Ala. Apr. 7, 1994); Allen v. Dr. Thomas, et

al., CA 94-0469-AH-S (S.D. Ala. Sept. 16, 1994); Allen v. Jones,

et al., CA 94-0572-CB-S (S.D. Ala. Nov. 7, 1994); Allen v. Jones,

et al., CA 94-0638-AH-S (S.D. Ala. Sept. 27, 1994); Allen v.

Folsom, et al., CA 94-A-0684-N (M.D. Ala. June 28, 1994); Allen

v. Folsom, et al., CA 94-A-0691-N (M.D. Ala. June 28, 1994);

Allen v. Allen, et al., CA 94-0987-RV-S (S.D. Ala. Jan. 31,

1995); Allen v. Harrelson, et al., CA 94-D-1524-N (M.D. Ala. Dec.

27, 1994); and Allen v. Naile, et al., CA 96-T-0446-N (M.D. Ala.

Apr. 17, 1996).

3

prior cases filed in federal court that were dismissed on the

ground that they were frivolous, malicious, or failed to state a

claim upon which relief could be granted.3

 Thus, Plaintiff

Case 1:09-cv-00838-CG-M Document 3 Filed 02/03/10 Page 3 of 10
4 Plaintiff refers to the year of the incident upon which

this action is based as both April 15, 2008, and April 15, 2009.

(Doc. 1 at 1-4). However, reference to Plaintiff’s previous

filings in this Court arising out of this same incident establish

that the correct date is April 15, 2008. 

5 For additional factual background related to the assault

and Plaintiff’s extensive treatment for his injuries, see Allen

v. Barnes, 2009 WL 1758806 (S.D. Ala. 2009).

4

cannot proceed in forma pauperis, and his present action is due

to be dismissed, unless he “is under imminent danger of serious

physical injury.” 28 U.S.C. § 1915(g).

In Plaintiff’s Complaint filed in this action on December

29, 2009, Plaintiff alleges that twenty months earlier, on April

15, 2008,4

 while incarcerated at Holman Correctional Facility

(“Holman”), Defendant, Dr. Robert Barnes, refused to refer him to

a neurologist for pain in his arm stemming from an assault on

April 13, 2008, in which Plaintiff was stabbed by another

inmate.5 (Doc. 1 at 3-4). This allegation was also the basis of

two previous lawsuits by Plaintiff: Allen v. Barnes, 2009 WL

1357383 (S.D. Ala. 2009), filed by Plaintiff on March 13, 2009,

and dismissed by this Court under 28 U.S.C. § 1915(g) on May 13,

2009 (09-137-CG-C, Docs. 1, 3, 4); and Allen v. Barnes, 2009 WL

1758806 (S.D. Ala. 2009), filed by Plaintiff on June 6, 2008, and

dismissed by this Court under § 1915(g) on June 18, 2009. (08-

322-WS-M, Docs. 1, 45, 49). For all practical purposes,

Plaintiff’s present Complaint is simply a re-filing of these two

Case 1:09-cv-00838-CG-M Document 3 Filed 02/03/10 Page 4 of 10
6 Plaintiff admits in his Complaint in the present action

that he is attempting to “reopen” his previous lawsuit, “08-322-

WS-M,” Allen v. Barnes, 2009 WL 1758806 (S.D. Ala. 2009). (Doc.

1 at 1-2).

5

previously dismissed Complaints.6

By way of comparison, in his Complaint in Allen v. Barnes,

2009 WL 1357383, *2 (S.D. Ala. 2009), Plaintiff alleges that, on

April 15, 2008 (the same date alleged in the present Complaint),

Dr. Barnes was deliberately indifferent to his serious medical

needs when he needed to see a neurologist for injuries to his arm

after he was assaulted by another inmate on April 13, 2008. 

(Complaint, 09-137-CG-C, Doc. 1 at 3-4). Because Plaintiff was a

“three striker,” this Court dismissed the action under § 1915(g),

finding that Plaintiff was not under imminent danger of serious

physical injury at or near the time that he filed his Complaint

on March 12, 2009. Allen, 2009 WL 1357383 at * 1-2. 

Similarly, in his Complaint in Allen v. Barnes, 2009 WL

1758806, *2 (S.D. Ala. 2009), Plaintiff alleges that, on May 7,

2008 (as opposed to April 15, 2008, as alleged in the present

action), Dr. Barnes provided inadequate medical treatment for his

injuries after he was assaulted by another inmate on April 13,

2008, including refusing to refer Plaintiff to a neurologist for

the injury to his arm and hand. (Complaint, 08-322-WS-M, Doc. 1

at 3-4). Because Plaintiff is a “three striker,” the Court again

dismissed the action under § 1915(g), finding that Plaintiff was

Case 1:09-cv-00838-CG-M Document 3 Filed 02/03/10 Page 5 of 10
7

 In Allen v. Barnes, 2009 WL 1758806, *4 (S.D. Ala. 2009),

the Court discussed Dr. Epperson’s findings related to

Plaintiff’s medical condition, which Dr. Epperson described as:

“mild to moderate carpal tunnel syndrome in his left hand and

moderate to severe tardy ulnar palsy with entrapment at the left

elbow in the left forearm.” 

6

not under imminent danger of serious physical injury at the time

that he filed the Complaint – between June 3 and June 6, 2008. 

Allen, 2009 WL 1758806, *6, *8. Thus, in both prior actions

filed against Dr. Barnes for failing to refer Plaintiff to a

neurologist immediately after the assault in April, 2008,

Plaintiff did not fall within the exception to § 1915(g); he

could not proceed in forma pauperis; and his actions were due to

be dismissed.

In the present action, Plaintiff again alleges that, on

April 15, 2008, Dr. Barnes was deliberately indifferent to his

serious medical needs by refusing to refer him to a neurologist

for treatment for his arm after he was injured in the inmate

assault on April 13, 2008. (Doc. 1 at 4). Plaintiff

acknowledges that Dr. Barnes did refer him to a neurologist, Dr.

Larry Epperson, in June, 2008;7

 that Dr. Barnes then referred him

to another neurologist, Dr. Quindlen, in September, 2008; and

that Dr. Barnes referred him to Drs. Meyers and Wilson at USA

Hospital in February 2, 2009, as well as to Dr. Fritz at the

Mobile Infirmary on February 12, 2009, who told Plaintiff that he

did not need surgery on his arm. (Id.). Plaintiff alleges,

Case 1:09-cv-00838-CG-M Document 3 Filed 02/03/10 Page 6 of 10
7

however, that Dr. Barnes’ initial delay in referring him to a

neurologist caused him to develop “ulnar tardy palsy” in his arm.

 (Id.). 

Assuming all of Plaintiff’s allegations in the present

Complaint as true, Plaintiff does not allege any facts which

would show that he was “under imminent danger of serious physical

injury” at the time that he filed the current Complaint, which

was on or around December 29, 2009, or that he is in jeopardy of

any ongoing danger. Indeed, Plaintiff filed his Complaint more

than one year and eight months after Dr. Barnes failed to refer

him to a neurologist in April, 2008, and Plaintiff acknowledges

that Dr. Barnes did refer him to a neurologist in June, 2008, as

well as to multiple specialists since that time. Thus, the

threat about which Plaintiff complains in his Complaint had

ceased prior to the filing of his Complaint. 

Furthermore, to the extent that Plaintiff claims that he

suffers from an ongoing medical condition with his left arm,

“tardy ulnar palsy,” Plaintiff still must allege facts which

would show a present imminent danger of serious physical injury. 

See Brown v. Johnson, 387 F.3d 1344, 1349 (11th Cir. 2004) (the

“Eleventh Circuit[] [has] determined that a prisoner must allege

a present imminent danger, as opposed to a past danger, to

proceed under section 1915(g). . . .“) (citing Medberry v.

Butler, 185 F.3d 1189, 1193 (11th Cir. 1999) (Plaintiff could not

Case 1:09-cv-00838-CG-M Document 3 Filed 02/03/10 Page 7 of 10
8

proceed under § 1915(g) because he failed to allege “that he was

in imminent danger of serious physical injury at the time he

filed his Complaint or that he was in jeopardy of any ongoing

danger.”)); see also Taylor v. Allen, 2009 WL 1758801, *2 (S.D.

Ala. 2009) (“a ‘general assertion is insufficient to invoke the

exception to § 1915(g) absent specific fact allegations of

ongoing serious physical injury, or of a pattern of misconduct

evidencing the likelihood of imminent serious physical injury.’”)

(citations omitted).

To the contrary, Plaintiff states that he does not need

surgery for his current medical condition, and he fails to

indicate any deteriorating medical condition that would suggest

an imminent danger of serious physical injury. (Doc. 1 at 4). 

Thus, Plaintiff is not entitled to avoid the bar of § 1915(g) and

is not allowed to proceed in forma pauperis in this action. 28

U.S.C. § 1915(g). 

“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 at *2; Dupree v.

Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (“The prisoner

cannot simply pay the filing fee after being denied in forma

pauperis status [pursuant to the three strikes provision of §

1915(g)]. He must pay the filing fee at the time he initiates

Case 1:09-cv-00838-CG-M Document 3 Filed 02/03/10 Page 8 of 10
8 Effective December 1, 2009, the time for filing written

objections was extended to “14 days after being served with a

copy of the recommended disposition[.]” Fed. R. Civ. P.

72(b)(2).

9

the suit.”).

Because Plaintiff did not pay the $350.00 filing fee at the

time that he filed this action and because he has failed to meet

the “under imminent danger of serious physical injury” exception

to § 1915(g), which would allow him to proceed in forma pauperis,

Plaintiff’s 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). 

 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 (14) 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 days8 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

Case 1:09-cv-00838-CG-M Document 3 Filed 02/03/10 Page 9 of 10
10

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.

DONE this 3rd day of February, 2010.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

Case 1:09-cv-00838-CG-M Document 3 Filed 02/03/10 Page 10 of 10