IN THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DEMARIO WALKER, #L1625, :

Plaintiff, :

vs. : CIVIL ACTION 09-0501-CG-C

MOBILE COUNTY CLERKS, :

Defendant. :

REPORT AND RECOMMENDATION

This action, filed under 42 U.S.C. § 1983 by a Mississippi 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 for the denial

a marriage license to plaintiff and his partner of the same gender 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

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injury.

28 U.S.C. § 1915(g).

In the present action, the Court discovered, in its review of the dockets of federal

courts in other jurisdictions, that this 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, Walker v. State of Mississippi,

et al., CA 04-00140-TSL-JCS (S.D. Miss. July 25, 2006) (action challenging same-sex

marriage ban failed to state a claim); Walker v. Mississippi Parole Bd., et al., CA 08-

00132-HTW-LRA (S.D. Miss. May 29, 2008) (frivolous), appeal dismissed as frivolous,

(5th Cir. July 14, 2009); Walker v. Barbour, et al., CA 08-00096-TSL-JCS (S.D. Miss.

Mar. 12, 2009) (claim challenging same-sex marriage ban was malicious because it was

previously litigated and the other claim was frivolous); Walker v. Jackson, et al., CA 08-

00221-DCB-MTP (S.D. Miss. July 14, 2008) (malicious because duplicative); Walker v.

United States, et al., CA 08-03025-ENV-LB (E.D.N.Y. Aug. 15, 2008) (action

challenging same-sex marriage ban dismissed under 1915A(b)), appeal dismissed as

frivolous, (2d Cir. June 9, 2009); Walker, et al. v. San Diego County Clerks, et al., CA

08-01504-JLS-NLS (S.D. Cal. Nov. 25, 2008) (action for denial of same-sex marriage

dismissed as frivolous and because it was duplicative); and Walker v. United States, et al.,

CA 08-01314-JAH-LSP (S.D. Cal. Dec. 3, 2008) (action for denial of same-sex marriage 

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Not only did the Court find these actions, the Court discovered that plaintiff had filed at

least fifty other federal actions. Many of these actions were dismissed pursuant to 28 U.S.C. §

1915(g). Thus, plaintiff was well aware of § 1915(g) and its implications when he filed the

present action. Furthermore, he filed several other actions based on the denial of a marriage

certificate for a same-sex marriage.

2

The Court, by separate order, is revoking its prior grant of plaintiff’s motion to proceed

without prepayment of fees in light of the Court’s discovery of his prior actions that were

dismissed because they were frivolous, malicious, or failed to state a claim upon which relief can

be granted.

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dismissed for failure to state a claim upon which relief can be granted).1 Thus, plaintiff

comes within the purview of 28 U.S.C. § 1915(g), which precludes him from filing the

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

injury.”2

 

After reviewing the complaint (Doc. 1) to determine if plaintiff satisfied the

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

filing, the Court concludes that plaintiff does not satisfy this requirement. In the

complaint received on August 5, 2009, plaintiff complains that his partner and he were

denied a marriage license because of their sex and sexual orientation and that the

Alabama statute prohibiting same-sex marriage was unconstitutional. (Doc. 1 at 4). 

Plaintiff indicates that his claims arose on October 15, 2007 and December 20, 2007 or

December 8, 2007. (Id). Based on these dates it appears that plaintiff’s claims occurred

well before he filed the present complaint, thereby undercutting any showing of

imminency.

Past harm does not satisfy § 1915(g)’s exception that a plaintiff be “under

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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 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 this action 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 

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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 the 26th day of March, 2010.

 s/WILLIAM E, CASSADY 

UNITED STATES MAGISTRATE JUDGE

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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). 

6

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. 

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.

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