IN THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ANTHONY JONES, :

Plaintiff, :

vs. : CIVIL ACTION 05-0685-CG-C

WILBER JOHNSON, et al., : 

Defendants. :

REPORT AND RECOMMENDATION

This § 1983 action , which was filed by an Alabama prison inmate, along with a

motion to proceed without prepayment of fees, has been 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. 6) 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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Plaintiff was denied leave to proceed in forma pauperis on appeal because the Eleventh

Circuit Court of Appeals found his appeal to be without arguable merit. When there is a lack of

arguable legal merit, the Supreme Court has determined the issue is frivolous. Neitzke v.

Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989). 

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the prisoner is under imminent danger of serious physical

injury.

In reviewing plaintiff’s recently filed complaint and motion to proceed without

prepayment of fees (Docs. 5 & 6), the Court examined its docket, along with the dockets

of the United States District Courts for the Middle and Northern Districts of Alabama,

and discovered that plaintiff had previously five actions or appeals dismissed as frivolous,

namely, Jones v. Mobile County District Court, et al., CA 92-0042-RV-M (S.D. Ala. Dec.

10, 1993); Jones v. Boutwell, et al., CA 95-0518-BH-S (S.D. Ala. July 26, 1995), appeal

without arguable merit, (11th Cir. Dec. 29, 1995);1 Jones v. English, et al., CA 95-1044-

RV-M (S.D. Ala. Oct. 18, 1996); and Jones v. Diamond, et al., 96-0293-RV-M (S.D. Ala.

May 23, 1996). 

Furthermore, in the complaint plaintiff alleges that on May 11 or 12, 2000,

defendants participated in his unlawful arrest and conspired to interrogate him, get his

consent, and obtain a sample of his blood, which was used against him in court.

Accordingly, the Court finds plaintiff’s allegations do not demonstrate that he was “under

imminent danger of serious physical injury” at the time he filed this action on November

22, 2005 (Doc. 1). Therefore, he cannot avail himself of the exception to § 1915(g). 

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

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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 $250.00 filing fee at the time he filed this action

and has not met § 1915(g)’s exception that he was “under imminent danger of serious

physical injury” at the time of filing, plaintiff’s action is due to be dismissed without

prejudice. Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (holding that 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. 6) 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 January, 2006.

s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

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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

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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