IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

CHARLES CALVIN MOORE, #209229, :

Plaintiff, :

vs. : CIVIL ACTION 10-00029-KD-B

DR. LOPEZ, et al., :

Defendants. :

REPORT AND RECOMMENDATION

This action, filed under 42 U.S.C. § 1983 by an Alabama prison

inmate proceeding pro se and seeking leave to proceed in forma

pauperis, 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 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 the prisoner is under imminent danger

of serious physical injury.

28 U.S.C. § 1915(g).

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The Court previously granted Plaintiff’s Motion to Proceed

Without Prepayment of Fees. (Doc. 5). By separate order, the

Court is withdrawing the prior order (Doc. 5), and ordering the

return to Plaintiff of his $2.16 partial filing fee in light of

the Court’s discovery that at least three of Plaintiff’s prior

actions and appeals were dismissed because they were frivolous,

malicious, or failed to state a claim upon which relief can be

granted.

2

A review of the dockets of federal courts in other

jurisdictions reveals that the instant action was filed by an

inmate who previously had at least three actions or appeals

dismissed because they were frivolous, malicious, or failed to

state a claim upon which relief can be granted, namely, Moore v.

Potts, et al., CA 08-0283-WKW-SRW (M.D. Ala. June 19, 2008); Moore

v. Potts, et al., CA 08-0859-LSC-HGD (N.D. Ala. Nov. 25, 2008);

Moore v. Potts, et al., CA 08-2087-KOB-HGD (N.D. Ala. June 12,

2009); and Moore v. Ferrell, CA 08-0533-KD-M (S.D. Ala.), appeal

dismissed as frivolous (11th Cir. Nov. 12, 2009) (appeal only).

Thus, the instant action comes within the purview of 28 U.S.C. §

1915(g), which precludes Plaintiff from proceeding with the instant

action in forma pauperis unless he is “under imminent danger of

serious physical injury.”1 

The undersigned has carefully reviewed Plaintiff’s Complaint

(Doc. 1) to determine if he has demonstrated that he was “under

imminent danger of serious physical injury” at the time he filed

the instant action, and concludes that Plaintiff has failed to

satisfy this requirement. In the Complaint received on January 15,

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2010, Plaintiff complains of the lack of adequate treatment for his

epilepsy and of being given overdoses of his dilantin medication.

(Doc. 1 at 4-9). According to Plaintiff, he had seizures on July

5, 2008, July 11, 2008, and December 20, 2008, during which he

injured his head and shoulders, and developed eyesight problems as

a result of overdosing. (Id.). Based on the dates provided by

Plaintiff, it appears that Plaintiff’s claims occurred well before

he filed the instant Complaint, thereby undercutting any showing of

imminency.

The law is clear that past harm does not satisfy § 1915(g)’s

exception that a plaintiff be “under imminent danger of serious

physical injury.” Brown v. Johnson, 387 F.3d 1344, 1349 (11th Cir.

2004) (“a prisoner must allege a present imminent danger, as

opposed to a past danger, to proceed under section 1915(g) . . .

.”); Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999) (“a

prisoner’s allegation that he faced imminent danger sometime in the

past is . . . insufficient”); see also Adbul-Akabar v. McKelvie,

239 F.3d 307, 315 (3d Cir.) (“By using the term ‘imminent,’

Congress indicated that it wanted to include a safety valve for the

‘three strikes’ rule to prevent impending harms, not those harms

that had already occurred.”), cert. denied, 533 U.S. 953 (2001).

Thus, in order to satisfy the exception to § 1915(g), a “plaintiff

must allege and provide specific fact allegations of ongoing

serious physical injury, or a pattern of misconduct evidencing the

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likelihood of imminent serious physical injury[.]” Ball v. Allen,

CA No. 06-0496-CG-M, 2007 WL 484547, at *1 (S.D. Ala. Feb. 8, 2007)

(citation and quotation marks omitted) (unpublished) (Granade,

C.J.). Plaintiff has not done this. 

Plaintiff’s failure to show that he was “under imminent danger

of serious physical injury” when he filed the present action

prevents his action from coming within § 1915(g)’s exception.

Accordingly, it is recommended that Plaintiff be afforded thirty

(30) days in which to pay the statutory filing fee in this action.

If he fails to do so, this action should be dismissed without

prejudice pursuant to 28 U.S.C. § 1915(g). Dupree v. Palmer, 284

F.3d 1234, 1236 (11th Cir. 2002) (holding that an 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).

The instructions that follow the undersigned’s signature

contain important information regarding objections to the Report

and Recommendation of the Magistrate Judge.

DONE this 24th day of May, 2010.

 /S/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

Case 1:10-cv-00029-KD-B Document 8 Filed 05/24/10 Page 4 of 6
2 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).

5

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 fourteen 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). 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,

in part, 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 days2

 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.

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2. Opposing party’s response to the objection. Any opposing

party may submit a brief opposing the objection within ten (10)

days of being served with a copy of the statement of objection. 

Fed. R. Civ. P. 72; SD ALA LR 72.4(b). 

3. 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.

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