IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

LARRY C. DIXON, #138238, :

:

Plaintiff, :

:

vs. : CIVIL ACTION 09-0757-WS-B

:

GWEN MOSELY, 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. Based upon a careful review of the record, the undersigned

recommends that Plaintiff’s 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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Plaintiff’s Complaint is signed and dated November 20,

2009. (Doc. 1)

2

Upon review of Plaintiff Larry C. Dixon’s litigation history,

the Court discovered that Plaintiff has had at least three actions

or appeals dismissed either as frivolous or for failure to state a

claim upon which relief can be granted, namely, Dixon v. Alabama

Dep’t of Corrections, et al., CA 95-0395 (M.D. Ala. Apr. 24, 1995);

Dixon v. Central Classification, et al., CA 97-1472-MHT-JLC (M.D.

Ala. Nov. 19, 1997), appeal dismissed as frivolous, (11th Cir. Mar.

23, 1998); and Dixon v. Thomas, et al., CA 06-0164-WKW-TFM (M.D.

Ala. July 30, 2008), appeal dismissed as frivolous, (11th Cir. Feb.

19, 2009). 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.” Accordingly, the Court must review Plaintiff’s

Complaint (Doc. 1) in order to determine if he has pled sufficient

facts to show that he was under imminent danger of serious physical

injury at the time he initiated this action. 

Plaintiff’s Complaint was received by the Court on November

17, 20091

. (Doc. 1). In the Complaint, Plaintiff lists August 31,

2009 as the date on which his claims arose. (Id. at 3). According

to Plaintiff, he was ordered to work in heat in excess of 120

degrees under the threat of being returned to Fountain Correctional

Center. Plaintiff asserts that as a result of the heat, he became

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dehydrated and was transferred from Loxley Work Release by C.M.S.

and its employees. Plaintiff maintains that the transfer resulted

in a denial of his liberty interest in continued participation in

work release without due process. Plaintiff further contends that

property valued at $4000.00 was taken from him or was not

transferred with him on August 31, 2009, and that a radio which had

previously been taken from him, was not returned. Plaintiff also

alleges that his legal materials were taken in order to deprive him

of access to the courts. In addition, Plaintiff asserts that

C.M.S. doctors’ unfettered discretion impacts his liberty interest

and that Loxley Work Release extorts money from inmates. In his

request for relief, Plaintiff seeks $5,000,000.00 in compensatory

and punitive damages and an order requiring that these practices

cease. 

The harms of which Plaintiff complains all occurred at a time

prior to the filing of his Complaint on November 17, 2009. Past

harm, however, 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) (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) (“[A] prisoner’s allegation that he faced

imminent danger sometime in the past is an insufficient basis to

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allow him to proceed in forma pauperis”); 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). 

While Plaintiff points to past actions, he has neglected to

allege specific facts showing that he is “under imminent danger.”

In addition, his Complaint is mute about the existence of a

concrete serious physical injury. Clearly, “the 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). Accordingly,

Plaintiff has failed to show that he was under “imminent danger of

serious physical injury” at the time he filed the present action.

The Court thus concludes that this action is precluded by §

1915(g) because Plaintiff failed to satisfy the exception and, as

a consequence, he should be denied in forma pauperis status in this

action. 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

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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 4th day of February, 2010.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

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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).

6

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.

DONE this 4th day of February, 2010.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

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