1 This term refers to a prisoner’s status under 28 U.S.C. §

1915(g) and applies to a prisoner who brings a civil action or

appeal without prepayment of fees or security therefor, after

having previously filed, while incarcerated, three or more

actions or appeals that were dismissed on the ground that they

were frivolous, malicious, or failed to state a claim upon which

relief could be granted. 

IN THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

GREGORY LEE, AIS # 184070, :

Plaintiff, :

vs. : CIVIL ACTION 09-0675-CB-M

CHIEF BROWN, et al., :

Defendants. :

REPORT AND RECOMMENDATION

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

inmate proceeding pro se 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). 

On October 14, 2009, Plaintiff, a previously adjudicated

“three striker,”1 filed his 42 U.S.C. § 1983 Complaint against

Defendants, “Chief Brown, Mrs. Green, Mrs. Nolan, Mrs. Rice, Mrs.

Williams, [and] Mrs. Mary.” (Doc. 1 at 1). Plaintiff’s

Complaint was not accompanied by the $350.00 statutory filing

Case 1:09-cv-00675-CB-M Document 2 Filed 02/01/10 Page 1 of 8
2

 If a prisoner is denied in forma pauperis status pursuant

to the three strikes provision of § 1915(g), the Court is not

required to give the prisoner an opportunity to pay the filing

fee prior to dismissing his § 1983 complaint. See Dupree v.

Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (“[A]fter three

meritless suits, a prisoner must pay the full filing fee at the

time he initiates suit.”). “The prisoner cannot simply pay the

filing fee after being denied in forma pauperis status.” Id.

2

fee. Therefore, Plaintiff’s action is subject to immediate

dismissal2

 unless the Court finds that he is entitled to proceed

in forma pauperis. 

To make that determination, the Court turns to Title 28

U.S.C. § 1915(g), which prohibits a prisoner from proceeding in

forma pauperis in civil actions under certain circumstances. It

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 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).

Under § 1915(g), “if a prisoner has had three or more cases

or appeals dismissed for one of the recited reasons, he cannot

proceed in forma pauperis.” Doss v. Henry, 2008 WL 5231863, *1

(N.D. Fla. 2008) (unpublished). “The only exception to this is

if the prisoner alleges he is ‘under imminent danger of serious

Case 1:09-cv-00675-CB-M Document 2 Filed 02/01/10 Page 2 of 8
3

physical injury.’” Id. (citing 28 U.S.C. § 1915; Brown v.

Johnson, 387 F.3d 1344 (11th Cir. 2004); Rivera v. Allin, 144

F.3d 719, 723 (11th Cir. 1998)).

In a previous action filed in this Court by Plaintiff, Lee

v. McKinnison, 08-00257-CG-M (S.D. Ala. 2009), Plaintiff was

identified as having six strikes, that is, six prior cases filed

in federal court that were dismissed on the ground that they were

frivolous, malicious, or failed to state a claim upon which

relief could be granted. In Lee v. McKinnison, 08-00257-CG-M

(S.D. Ala. 2009), Chief United States District Judge Callie V. S.

Granade denied Plaintiff’s motion to proceed without prepayment

of fees and dismissed Plaintiff’s action without prejudice

pursuant to 28 U.S.C. § 1915(g). (Id., Docs. 6, 7). The Court

stated:

During the screening of this action under 28

U.S.C. § 1915(e)(2)(B), the Court discovered

that, after reviewing the records of the

United States District Court for the

Southern, Middle, and Northern Districts of

Alabama, Plaintiff had more than three

actions that were previously dismissed as

frivolous or malicious, or for failure to

state a claim upon which relief can be granted. See Lee v.

Aycock, CA 97-1806-UWC-TMP (N.D. Ala. Apr. 10, 1998); Lee v.

Haley, et al., CA 00-0985-MHT-VPM (M.D. Ala. Sept. 8, 2000); Lee

v. Haley, et al., CA 02-1343-WHA-VPM (M.D. Ala. Jan. 29, 2003);

Lee v. Holt, et al., CA 03-1055-ID-VPM (M.D. Ala. Dec. 16, 2003);

Lee v. Smith, et al., CA 03-1237-SLB-TMP (N.D. Ala. Apr. 20,

2006); and Lee v. Campbell, et al., CA 03-1812-IPJ-TMP (N.D. Ala.

May 1, 2006). In addition to these dismissals, Plaintiff filed

at least ten actions that were dismissed pursuant to § 1915(g)

because he did not pay the filing fee when he initiated the

action. [FN2]

Case 1:09-cv-00675-CB-M Document 2 Filed 02/01/10 Page 3 of 8
4

[FN2] The following actions filed by

plaintiff were dismissed pursuant to §

1915(g): Lee v. Campbell, CA 04-0773-SNE (N.D. Ala. Apr. 30, 2004); Lee v.

Boyeet, et al., CA 04-2256-TMP (N.D.

Ala. Aug. 4, 2004); Lee v. Mrs. Arnold,

et al., CA 05-0108-VPM-MEF (M.D. Ala.

Mar. 14, 2005); Lee v. Hill, et al., CA

05-1042-ID-DRB (M.D. Ala. Dec. 1, 2005);

Lee v. Thomas, CA 06-0451-WKM-VRM (M.D.

Ala. June 15, 2006); Lee v. Hope, et

al., CA 06-0443-MEF-VPM (M.D. Ala. June

16, 2006); Lee v. Hope, et al., CA 07-

0795-WKW-WC (M.D. Ala. Sept. 26, 2007);

Lee v. Ferrell, et al., CA 07-0773- MHTWC (M.D. Ala. Oct. 23, 2007); Lee v.

Hope, et al., CA 07-0996-WHA-WC (M.D.

Ala. Dec. 4, 2007); Lee v. Marcus, et

al., 08-0568-WHA-WC (M.D. Ala. Aug. 20,

2008). 

. . . [T]here is no indication that Plaintiff

was under imminent danger of serious physical

injury when he filed the present Complaint. 

[footnote omitted] 

Because Plaintiff cannot avail himself of §

1915(g)’s exception, and on account of his

failure to pay the $350.00 filing fee at the

time he filed this action, Plaintiff’s action

is due to be dismissed without prejudice... 

(Id., Doc. 5).

In his Complaint in this action, Plaintiff alleges that, in

“2009 - everyday” while incarcerated at Fountain Correctional

Facility (“Fountain”), Defendants maintained a “nasty” kitchen. 

(Doc. 1 at 3). Specifically, Plaintiff alleges that:

The kitchen is nasty[.] Sewer waters, and

human waste be running over [the] kitchen

floor by sewers drains backing up. Gregory

Lee is filing a complaint against G.K.

Fountain kitchen staffs. The food is not fit

enough for human consumption. There is mold

Case 1:09-cv-00675-CB-M Document 2 Filed 02/01/10 Page 4 of 8
3 Plaintiff’s allegation that “[t]he food or something is

making me sick” (Doc. 1 at 3), is insufficient to establish “a

present imminent danger” allowing him to proceed under § 1915(g). 

Brown, 387 F.3d at 1349. “General allegations that are not

grounded in specific facts which indicate that serious physical

injury is imminent are not sufficient to invoke the exception to

§ 1915(g).” Stearnsmiller v. Florida, 2009 WL 5067668, *4 (N.D.

Fla. 2009) (citing Martin v. Shelton, 319 F.3d 1048, 1050 (8th

Cir. 2003)). “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,’ id., and vague allegations of harm and

unspecific references to injury are insufficient.” Id. (quoting

White v. State of Colorado, 157 F.3d 1226, 1231(10th Cir. 1998)).

5

on the juice containers. The workers are not

clean cut (fingernails) and are properly

protecting thereselves. (sic) The washing

process of the trays is also unfit. The food

or something is making me sick. The floors

are not properly clean. I will report this

to the health department if nothing is done. 

The stewards have long fingernail and wearing

makeup. They are not properly dressed. 

(Doc. 1 at 3-4). Plaintiff claims that the kitchen conditions at

Fountain violate the Eighth Amendment and requests that the Court

“order ADOC to upgrade better standard on food, floors, etc.

issues.” (Doc. 1 at 4, 6). 

Assuming all of Plaintiff’s allegations as true related to

the “nasty” kitchen conditions at Fountain, there is no

indication that Plaintiff was “under imminent danger of serious

physical injury” at the time that he filed the present Complaint

on October 14, 2009, or that an “imminent danger of serious

physical injury” is ongoing.3 Thus, Plaintiff is not entitled to

avoid the bar of § 1915(g) and is not allowed to proceed in forma

Case 1:09-cv-00675-CB-M Document 2 Filed 02/01/10 Page 5 of 8
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pauperis in this action. 28 U.S.C. § 1915(g). 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) (Plaintiff could not proceed under § 1915(g)

because he failed to allege “that he was in imminent danger of

serious physical injury at the time he filed his Complaint or

that he was in jeopardy of any ongoing danger.”).

As noted above, “[i]n this Circuit, a prisoner who is no

longer entitled to proceed in forma pauperis must pay the filing

fee at the time he initiates the suit, and failure to do so

warrants dismissal without prejudice.” Doss, 2008 WL 5231863, *2

(N.D. Fla. 2008); Dupree, 284 F.3d at 1236 (“The prisoner cannot

simply pay the filing fee after being denied in forma pauperis

status [pursuant to the three strikes provision of § 1915(g)]. 

He must pay the filing fee at the time he initiates the suit.”).

Because Plaintiff did not pay the $350.00 filing fee at the

time that he filed this action and because he has failed to meet

the “under imminent danger of serious physical injury” exception

to § 1915(g), which would allow him to proceed in forma pauperis,

Plaintiff’s action is due to be dismissed without prejudice. 

Accordingly, it is recommended that this action be dismissed

without prejudice pursuant to 28 U.S.C. § 1915(g). 

Case 1:09-cv-00675-CB-M Document 2 Filed 02/01/10 Page 6 of 8
4 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).

7

 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 days4 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.

Case 1:09-cv-00675-CB-M Document 2 Filed 02/01/10 Page 7 of 8
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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 1st day of February, 2010.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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