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IN THE UNITED STATES DISTRICT COURT FOR THE 

 SOUTHERN DISTRICT OF ALABAMA 

 SOUTHERN DIVISION 

MARCUS TATE, : 

a/k/a/ MARCUS TAITE, 

a/k/a DRELIJAH MUHAMMAD, : 

AIS # 180664, 

 : CIVIL ACTION 10-0257-KD-M 

Plaintiff, 

 : 

vs. 

 : 

STATE OF ALABAMA, et al., 

 : 

Defendants. 

 REPORT AND RECOMMENDATION

This 42 U.S.C. ' 1983 action, filed by an Alabama prison inmate 

proceeding pro se and seeking leave to proceed in forma pauperis, 

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). 

For the reasons set forth below, it is recommended that this action 

be dismissed without prejudice pursuant to 28 U.S.C. ' 1915(g).1

 

Section 1915(g), referred to as the “three-strikes” provision 

of the Prison Litigation Reform Act (PLRA), 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 

 

1 In light of this Report and Recommendation, Plaintiff’s pending 

“motion to proceed without payment” (Doc. 3) is DENIED. In addition, 

Plaintiff’s motions to compel an answer, to appoint counsel, and 

for class action status (Doc. 2) and to quash the indictment filed 

in state court (Doc. 4) are MOOT. 

 

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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. 

During the screening of this action under 28 U.S.C. § 

1915(e)(2)(B),2

 the Court discovered that Plaintiff previously had 

at least three actions that were dismissed on grounds enumerated 

in § 1915(g). A review of the records of the United States District 

Court for the Southern, Middle, and Northern Districts of Alabama 

reflects that the following actions brought by Plaintiff were 

dismissed on one of these grounds, to-wit: Marcus Orlando Taite v. 

Haley, et al., CA 02-0034-MHT-CSC (M.D. Ala. Apr. 18, 2002); Marcus 

O. Tate, et al. v. Keahey, et al., CA 02-0734-BH-S (S.D. Ala. Feb. 

11, 2003); and Marcus Tate v. Lawson, CA 06-01779-RBP (N.D. Ala. 

Nov. 17, 2006). 

In addition to these actions, Plaintiff, while a prisoner, filed 

Drelijah Joshua Muhammad, II v. McIntyre, et al., CA 06-0228-BH-C 

 

2 28 U.S.C. § 1915(e)(2)(B) provides: 

(2) Notwithstanding any filing fee, or any 

portion thereof, that may have been paid, 

the court shall dismiss the case at any 

time if the court determines that-- 

. . .(B) the action or appeal-- 

(i) is frivolous or malicious; 

(ii) fails to state a claim on which 

relief may be granted; or 

(iii) seeks monetary relief against 

a defendant who is immune from such 

relief. 

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(S.D. Ala. Oct. 17, 2006), which was dismissed for lack of subject 

matter jurisdiction. The dismissal occurred in this manner because 

Plaintiff paid the filing fee for his action and sued non-state 

actors, which placed his action beyond the purview of 28 U.S.C. §§ 

1915 and 1915A. Nonetheless, Plaintiff’s § 1983 complaint was found 

to be without legal merit, which, by logical extension, meets the 

criteria of Neitzke v. Williams, 490 U.S. 319 (1989), for a frivolous 

action, i.e., one based on an “indisputably meritless legal theory” 

or lacking an “arguable basis in law.” Id. at 327, 328. Therefore, 

the dismissal should be eligible for consideration as a “strike” 

under ' 1915(g). In any event, as discussed above, Plaintiff has 

three other dismissals that qualify as § 1915(g) strikes. 

Furthermore, Plaintiff filed this action on or about May 18, 

2010, without paying the filing fee, knowing that he would be subject 

to § 1915(g). This Court and the United States District Court for 

the Middle District of Alabama have entered Orders applying § 1915(g) 

to at least five actions filed by this Plaintiff, dismissing each 

of the actions for violating § 1915(g). See Tate v. Price, 2009 

WL 1034965, CV-09-221-TMH (M.D. Ala. 2009)(concluding that summary 

dismissals of Plaintiff’s four previous cases rendered him “in 

violation of the directives of 28 U.S.C. § 1915(g)” and required 

dismissal of the action); Tate v. Bivins, 2008 WL 2705388, 

CV-08-0333-BH-M (S.D. Ala. 2008) (dismissing action under 28 U.S.C. 

§ 1915(g)); Tate v. Bass, 2007 WL 4571256, CV-07-1093-MHT (M.D. Ala. 

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2007) (recommending dismissal under “three strikes” provision of 

28 U.S.C. § 1915(g)), report and recommendation adopted by Tate v. 

Bass, 2008 WL 160599 (M.D. Ala. 2008); Tate v. Bass, 2007 WL 2333041, 

CV—07-0298-CB-M (S.D. Ala. 2007) (dismissing action under 

§ 1915(g)); Tate v. Bass, 2007 WL 1834892, CV-07-0305-KD-C (S.D. 

Ala. 2007) (dismissing action under § 1915(g)). 

While the three-strikes provision of § 1915(g) provides an 

exception to the requirement of dismissal if “the prisoner is under 

imminent danger of serious physical injury,” 28 U.S.C. § 1915(g), 

Plaintiff in the present action is not subject to this exception 

because his complaint does not indicate that, at the time of filing, 

he was “under 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). . . .”); 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). 

In his complaint in this action, Plaintiff alleges that he is 

seeking redress (“$900 trillion dollars”) for himself and all African 

American people arising out of the slave trade that occurred in 

Mobile, Alabama, “in slave days of time.” (Doc. 1 at 1-3) (spelling 

corrected). Plaintiff sues the State of Alabama, the Roman Pope, 

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the Queen of England, the United States of America White House, the 

Christopher Columbus Slave Ship, and the N.Y. Stock Market “Trading 

Slave Post,” seeking damages and the “right[] to leave the U.S. back 

to the great mother land of Africa” because he and other African 

Americans “did not ask[] to be here in the U.S. by ‘free will,’” 

but were forced here by Defendants “and kidnapped from Africa through 

[their] Great, Great Ancestor’s Grandmothers and Grandfathers and 

brought to Mobile, Ala. on the slave ships. . . .” (Id. at 1-2). 

These allegations do not meet § 1915(g)'s “imminent danger of serious 

physical injury” exception. 

Because Plaintiff cannot avail himself of § 1915(g)'s exception 

and did not pay the $350.00 filing fee at the time he filed this 

action, Plaintiff's action is due to be dismissed without prejudice. 

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); Vanderberg v. Donaldson, 259 

F.3d 1321, 1324 (11th Cir. 2001) (holding that the filing fee must 

be paid by an inmate subject to § 1915(g) at the time an action is 

commenced). 

Accordingly, it is recommended that this action be dismissed 

without prejudice pursuant to 28 U.S.C. § 1915(g). In light of this 

Report and Recommendation, Plaintiff’s pending “motion to proceed 

without payment” (Doc. 3) is DENIED; and Plaintiff’s motions to compel 

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an answer, to appoint counsel, and for class action status (Doc. 

2) and to quash the indictment filed in state court (Doc. 4) are 

MOOT. 

 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 days3 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. 

 3 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). 

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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 21st day of July, 2010. 

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE 

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