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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DERIC LAVELLE MAY, #209534, :

Plaintiff, :

vs. : CIVIL ACTION NO. 15-00025-KD-B

KAREN STONE, et al., :

Defendants. :

REPORT AND RECOMMENDATION

Deric LaVelle May, an Alabama prison inmate who is 

proceeding pro se, filed the instant § 1983 action, which 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. 

When May filed his Complaint, he also filed a motion to proceed 

without prepayment of fees. Because May is a “three-striker,” 

he is required to pay the statutory filing fee at the time of 

filing, unless he meets the exception to 28 U.S.C. § 1915(g). 

After reviewing May’s Complaint, the undersigned recommends that 

that this action be dismissed without prejudice pursuant to 28 

U.S.C. § 1915(g). 

I. Applicable Law.

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 

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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.

The purpose of this section is to curb abusive prisoner 

litigation by requiring a prisoner who has had three actions or 

appeals dismissed as meritless to pay the full filing fee when 

his next action is filed. Dupree v. Palmer, 284 F.3d 1234, 1236 

(11th Cir. 2002). “The only exception to section 1915(g) is if 

the frequent filer prisoner is ‘under imminent danger of serious 

physical injury.’” Rivera v. Allin, 144 F.3d 719, 723 (11th 

Cir. 1998), overruled on other grounds by Jones v. Bock, 549 

U.S. 199, 215-16 (2007).

Even though May is known to this Court as a “threestriker,” the Court has nevertheless reviewed the records of the 

United States District Court for the Southern, Middle, and 

Northern Districts of Alabama to verify that he has three or 

more in forma pauperis actions or appeals that were dismissed on 

the grounds that they were frivolous, malicious, or failed to 

state a claim upon which relief can be granted. From this 

review, the Court confirmed that May has seven actions and 

appeals that were dismissed based on one of the foregoing 

reasons, namely, May v. Culliver, CA 10-0121-CG-C (S.D. Ala. 

Feb. 24, 2012) (failure to state a claim), appeal dismissed

(11th Cir. Sept. 20, 2012) (frivolous); May v. Patterson, CA 12-

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0703-KD-N (S.D. Ala. Sept. 5, 2013) (malicious), appeal 

dismissed (11th Cir. June 4, 2014) (frivolous); May v. Barber,

CA 13-0237-CB-C (S.D. Ala. July 22, 2013) (malicious), appeal 

dismissed (11th Cir. July 24, 2014) (frivolous); May v. 

Patterson, App. No. 13-14499-C (11th Cir. June 26, 2014) 

(frivolous) (corresponding district court case is CA 11-0675-KDB (S.D. Ala. Sept. 9, 2013) (dismissed on defendants’ summary 

judgment motion)).1

In order to avoid the dismissal of the present action 

pursuant to § 1915(g), May must satisfy the exception to 

§ 1915(g), which requires that at the time of the complaint’s 

filing, he show that he was “under imminent danger of serious 

physical injury.” See Adbul-Akabar v. McKelvie, 239 F.3d 307, 

315 (3d Cir. 2001) (“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 

 1

 In addition to these actions and appeals, this Court’s docket 

reflects nine other actions filed by May in addition to another 

action filed in the Northern District of Alabama. Based on a 

review of all May’s actions, eight of May’s actions contain 

claims based on medical issues related to his head, namely, May 

v. Culliver, CA 10-0121-CG-C; May v. Patterson, CA 11-0675-KDB; May v. Barber, CA 13-0237-CB-C; May v. Barber, CA 13-0429-CBM; May v. Hetzel, CA 14-0155-CG-C; May v. Thomas, CA 13-0385-CBM; May v. Barber, CA 14-0479-WS-N; and May v. Andrews, CA 15-30-

KD-M (pending). Furthermore, five of his actions have been 

dismissed pursuant to 28 U.S.C. § 1915(g), namely, May v. 

Barber, CA 13-0429-CB-M; May v. Howard, CA 13-0557-CG-C; May v. 

Smith, CA 14-0171-CG-B; May v. Myers, CA 14-0271-KD-B; May v. 

Thomas, CA 13-0385-CB-M; and May v. Andrews, CA 15-0030-KD-M.

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

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) (ruling that the

plaintiff must face imminent danger of serious physical injury 

at the time the complaint is filed, not at a prior time). 

In determining if the exception to § 1915(g) is satisfied, 

“the issue is whether his complaint, as a whole, alleges 

imminent danger of serious physical injury.” Brown, 387 F.3d at 

1350. To make this showing, 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 U.S. Dist. LEXIS 9706, at *4, 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. 

II. Complaint. (Doc. 1).

On January 16, 2015, the Court received May’s Complaint, 

which bears a signature date of January 12, 2015. (Doc. 1 at 

7). In the complaint, May identifies March 27, 2014, as the 

date of the complained of incident. (Id. at 4). He names as 

Defendants, Karen Stone, Doctor at Holman Correctional Facility 

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(“Holman”); Bennie Andrews, Registered Nurse and Health Services 

Administrator at Holman; and Gary Hetzel, Warden at Holman. 

(Id. at 5). According to May, on January 27, 2014, he had an 

appointment with Dr. Iliff for frequent and severe headaches. 

(Id. at 4). May told Dr. Iliff that his AVMs and shunt issues 

might be causing him headaches. (Id.). Dr. Iliff submitted a 

request for a CT scan of May’s head. (Id.). 

On March 5, 2014, Defendant Dr. Stone met with May to 

discuss the report of the CT scan of his head taken on February

21, 2014. (Id.). In his Complaint, May quotes from the report 

and takes issue with findings in the report, to-wit:

The report reveals that (May) has had a 

cranlotomy in the occiput and there are some 

scattered clips of what are probable aneurysm 

type clips scattered about the posterior fossa 

and this produces flash artifacts. This study 

does suggest infarction of a portion of the 

portion medial right cerebellar hemisphere and 

a small portion of the left occipital lobe. 

“There is a VP ‘shunt tube’ (called 

ventricular catheter) that enters the right 

superior occipital bone and goes into the 

right lateral ventricle. The ventricle[s] are 

mild[ly] prominent but not grossly enlarged 

and the ventricles are fairly symmetrical. No 

intracranial bleed or mass effect is seen. 

There is no study for comparison.” However, 

this shunt tube is only one part to [his] VP 

shunt. The report didn’t mention any other 

parts, such as the reservoir, valve, or 

distal. Each VP shunt general[ly] has four 

parts but [his] VP shunt is a man made

artifact and defendant[s] are not in 

possession of [his] medical record[s] from 

1990 when the VP shunt was first placed in 

[his] ventricle, therefore, the defendants’ 

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really lack knowledge about the object 

therefor, standards of care [are] inadequate. 

(Id. at 4, 5, 8) (emphasis in original).

On March 27, 2014, May signed up for sick call to speak 

with Defendant Dr. Stone, because the radiologist did not 

mention May’s hydrocephalus in her report, and to request to be 

seen by a neurologist and a neurosurgeon so they could review 

May’s CT scan. (Id. at 8-9). May was not seen at sick call but 

instead received a written response by Defendant Dr. Stone, 

which stated:

I do not need to see you again re: the matter 

of a neurologist or neurosurgeon consult 

related to your shunt. As I explained to you 

on your CCC (Chronic Care Clinic) visit of 

March 5, 2014, the CT of your head of 

February 21, 2014 is the same or even 

slightly improved as compared to the CT of 

July 22, 2009. This is my decision at this 

time. 

(Id. at 9). May further alleges that on March 27, 2014, 

Defendant Hetzel “failed to ensure that the defendants were 

adequately trained, . . . to oversee them[,] and [to] discipline 

them[,]” but without providing specific facts to support this 

claim against a corrections official. (Id. at 6).

 Plaintiff contends that neither the CT scan of February 21, 

2014 nor the CT scan of July 22, 2009 showed that his shunt is 

working as it is designed to work and that Defendant Dr. Stone 

made a decision that requires a specialist’s attention. (Id. at 

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9). He asserts that Dr. Quindlen noted in his report of July 

12, 2010 that Plaintiff’s shunt “has collapsed and does not 

refill.” (Id.).

On April 8, 2014, May filed a grievance complaining that he 

had signed up for sick call to request to be examined by a 

neurologist and/or neurosurgeon because hydrocephalus is 

present. (Id.). Defendant Andrews responded “that he had 

spoken with (Dr. Stone) regarding this complaint. She and I 

concur that compared to [his] recent CT scan and previous CT 

scan there had been no change. This is an indication that the 

shunt is working.” (Id.). May maintains that neither his “CT 

scan of July 22, 2014[sic]” nor the CT scan of February 21, 2014 

“reveals that the VP shunt is working as it was designed to work 

[and that Defendants] (Andrews) and (Stone) made a decision that 

required a specialist[’s] attention.” (Id. at 10).

May also asserts:

[His] VP shunt was implanted in the 

right ventricle of his brain to manage the 

pressure from his hydrocephalus, a very 

danger[ous] brain condition due to an 

excessive buildup of cerebro spinal fluid. 

This excessive buildup of cerebro spinal 

fluid has caused [him] daily discomforts such 

as frequent and se[vere] headaches, [his] 

equilibrium is off, tire[d]ness irritability 

due to defendant’s refuse[al] to ensure [he] 

received anything to alleviate his pains, and 

when [he] did not get prescribed something to 

alleviate his pains it came after lengthy 

delays because [his] family contacted a 

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higher authority. Defendant[s’] obdurate 

refusal was clearly wanton[n]ess. 

(Id.).

May further maintains that the total withdrawal of medical 

care constituted an “imminent danger of serious physical 

injury.” (Id. at 8). Moreover, May claims that the “VP shunt 

has collapsed, does not refill, and can further deteriorate to 

the extent that it pose[s] an imminent danger of serious 

physical injury because [his] VP shunt[’s] malfunction is left 

untreated.” (Id. at 11). 

For relief, May requests punitive and compensatory damages 

and all costs taxed to the Defendants. (Id. at 7). 

III. Analysis.

May’s Complaint was filed between January 12, 2015, when he 

signed the document, and January 16, 2015, when it was received 

by the Court. (Id. at 7). See Houston v. Lack, 487 U.S. 266, 

276, 108 S. Ct. 2379, 2385, 101 L. Ed. 2d 245 (1988) (When a 

prisoner “deliver[s] [a pleading] to the prison authorities for 

forwarding to the court clerk,” it is deemed filed.); see Garvey 

v. Vaughn, 993 F.2d 776, 783 (11th Cir. 1993) (extending Houston

to § 1983 actions filed by pro se prisoners). In this instance, 

the exact filing date need not be determined because the dates 

that are connected to the named Defendants range from March 5, 

2014, to April 8, 2014, not near the time of the filing of the 

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Complaint in January, 2015. (Doc. 1 at 7). That is, Defendant 

Dr. Stone interacted with May on March 5, 2014 and near March 

27, 2104; Defendant Andrews, on April 8, 2014; and Defendant 

Hetzel, on March 27, 2014. (Id. at 5-7).

However, no allegations are present in the Complaint 

showing that at the time the Complaint was filed in January, 

2015 that May was in imminent danger of a serious physical 

injury as a result of any of the Defendants’ actions or 

inactions. See Zatler v. Wainwright, 802 F.2d 397, 401 (11th 

Cir. 1986) (finding that a plaintiff must establish a causal 

connection between a defendant’s actions, orders, customs, or 

policies and a deprivation of the plaintiff’s constitutional 

rights in order to state a claim upon which relief may be 

granted in a § 1983 action); cf. Ashcroft v. Iqbal, 556 U.S. 

662, 678, 129 S. Ct. 1937, 1949, (2009) (holding that “a 

complaint must contain sufficient factual matter, accepted as 

true, to state a claim to relief that is plausible on its face”)

(citation omitted). May complains about Defendants’ actions or 

inactions that occurred in the past, not near the time of the 

Complaint’s filing. Even though this deficiency controls the 

disposition of this action, the court does recognize that May’s 

underlying hydrocephalus and the condition of his VP shunt have 

been determined previously to be a serious medical need. See

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May v. Patterson, CA No. 11-675-KD-B (S.D. Ala.) 2 (unpublished) 

(recognizing Plaintiff’s serious medical need), appeal dismissed 

 2 In May v. Patterson, CA No. 11-675-KD-B, the medical 

Defendants furnished a copy of May’s medical records with their 

Special Report. (Doc. 32). These records show that on July 12, 

2010, Dr. Eugene Quindlen, a neurosurgeon at the University of 

South Alabama (“USA”), examined May for increased headaches and 

ataxia. (Doc. 32-3 at 19). He noted May’s history of having a 

VP shunt placed in his brain in 1990 for hydrocephalus and of 

having a resection of two AVMs in his brain in 1991 and 1992 by 

Dr. Wink Fisher at UAB. (Id.). Earlier, when Dr. Quindlen saw 

May in 2008, he could find no particular reason for May’s

headaches. (Id.). He observed that May had a history of a 

severe stroke, and was taking tegretol for seizures. (Id.). 

The medical records show that on July 12, 2010, May was 

having severe headaches, dizzy spells, and fatigue (id. at 19); 

his gait was slightly more stiff than before; and Dr. Quindlen 

could palpate the shunt, which was noted as being collapsed and 

not refilling. (Id. at 20). His review of the x-rays showed no 

evidence of edema and no shunt x-rays being performed. (Id.). 

Dr. Quindlen found that May was “healthy appearing and in no 

apparent distress” and did not think that May had “severe 

elevated intracranial pressure [, but instead was] having poor 

shunt function.” (Id.). His plan was to obtain shunt films and 

admit May to the hospital for a shunt revision. (Id.). 

Shortly thereafter, on September 15, 2010, pursuant to the 

warden’s request, the prison doctor extensively reviewed May’s 

medical records, noting that May has hydrocephalus with a 

malfunctioning shunt, which had led to headaches and ataxia. 

(Doc. 32-3 at 5). The warden wanted the doctor to talk to May

because he refused to have surgery performed by the neurosurgeon 

at USA and instead wanted to have his original surgeon at UAB, 

who had given him the shunt, perform the surgery. (Id.). The 

UAB option was not available. (Id.). Thus, May refused to have 

the recommended surgery. (Id. at 30). 

On July 24, 2013, a Report and Recommendation was entered 

granting Defendants’ summary judgment and finding no deliberate 

indifference to May’s serious medical needs. (Doc. 69). The 

extensive medical treatment that May received was recounted. 

After the District Court adopted the Report and Recommendation 

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as frivolous (11th Cir. June 26, 2014) (holding that the 

District Court properly granted summary judgment) (Doc. 94). 

However, May made no allegations that he was in “imminent danger 

of serious physical injury” at the time of the Complaint’s 

filing. Accordingly, the undersigned concludes that May’s 

allegations do not demonstrate that he was “under imminent 

danger of serious physical injury” at the time the Complaint was 

filed. Brown, 387 F.3d at 1350. 

IV. Conclusion.

Because May cannot avail himself of § 1915(g)’s exception, 

and on account of his failure to pay the $400.00 filing fee at 

the time he filed his Complaint, this action is due to be 

dismissed without prejudice. Dupree, 284 F.3d at 1236 (holding 

 

and entered Judgment for Defendants (Docs. 74, 75), May

appealed. 

On June 26, 2014, the Eleventh Circuit Court of Appeals 

found May’s appeal to be frivolous. (Doc. 94 at 7). The 

Eleventh Circuit noted that May’s taking issue with Dr. 

Quindlen’s recommendation was the root of the instant action and 

“cannot sustain a claim of deliberate indifference.” (Id.). 

The Court opined that May had “not identified any evidence to 

refute or even undermine Dr. Quindlen’s medical judgment, or 

otherwise demonstrate that the Defendant rendered inadequate or 

delayed medical care. [Plaintiff] instead has demanded a 

physician of his own choosing.” (Id.) (Emphasis added.)

In a later action, May v. Barber, CA No. 14-479-WS-N (S.D. 

Ala. Feb. 26, 2105), some of May’s litigation history 

surrounding medical issues with his head is again recounted in 

the Magistrate Judge’s Report and Recommendation recommending 

the dismissal of his action pursuant to 28 U.S.C. § 1915(g). 

(Doc. 2).

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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.) (holding that the 

filing fee paid must be paid by an inmate subject to § 1915(g) 

at the time an action is commenced), cert. denied, 535 U.S. 976 

(2002). Therefore, it is recommended that this action be 

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

NOTICE OF RIGHT TO FILE OBJECTIONS

A copy of this report and recommendation shall be served on 

all parties in the manner provided by law. 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. See

28 U.S.C. § 636(b)(1); FED.R.CIV.P. 72(b); S.D. ALA. L.R. 72.4. 

The parties should note that under Eleventh Circuit precedent, 

“the failure to object limits the scope of [] appellate review 

to plain error review of the magistrate judge’s factual 

findings.” Dupree v. Warden, 715 F.3d 1295, 1300 (11th Cir. 

2013). In order to be specific, an objection must identify the 

specific finding or recommendation to which objection is made, 

state the basis for the objection, and specify the place in the 

Magistrate Judge’s report and recommendation where the disputed

determination is found. An objection that merely incorporates 

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by reference or refers to the briefing before the Magistrate 

Judge is not specific.

DONE this 17th day of April, 2015.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

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