IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

MARCUS O. TAITE, * 

(AIS #: 180664) * 

*

 Plaintiff, * 

 * 

vs. * CIVIL ACTION NO.14-00530-CG-B

*

 *

SPENCER B. WALKER, et al., * 

 * 

 Defendants. *

REPORT AND RECOMMENDATION

Marcus Taite1 , an Alabama prison inmate proceeding pro se,

filed the instant 42 U.S.C. § 1983 action which has been 

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).

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

provision of the Prison Litigation and 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 has, on 3 or more 

prior occasions, while incarcerated or detained in any 

 1 The Alabama Department of Corrections’ website lists a number 

of different aliases for Taite including “Marcus O. Taite”, 

“Marcus Tate”, “Marcus Orlando Tate”, and “Drelijah Joshua 

Muhammad”. www.doc.state.al.us/inmateHistory.aspx. 

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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). 

This section is intended to curb abusive prisoner 

litigation by requiring prisoners who have had three actions or 

appeals dismissed as meritless to pay the full filing fee when 

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

1236 (11th Cir. 2002); Vanderberg v. Donaldson, 259 F.3d 1321, 

1324 (11th Cir. 2001). “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); see also 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 

. . . under section 1915(g)”); Medberry v. Butler, 185 F.3d 

1189, 1193 (11th Cir. 1999)(noting that 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 compliant or that he was in jeopardy of any ongoing 

danger”).

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

1915(e)(2)(B) 2 , the Court discovered that Plaintiff has 

previously had at least three actions dismissed during his 

incarceration. A review of the records of the United States 

District Court for the Southern, Northern, and Middle Districts 

of Alabama reflects that the following actions brought by Taite 

were dismissed on one of the grounds enumerated under § 

1915(e)(2)(B): Marcus Orlando Taite v. Haley, CA-02-0034-MHT-CSC 

(M.D. Ala. Apr 18, 2002); Marcus O. Tate v. Keahey, CA-02-734-

BH-S (S.D. Ala. Feb 11, 2003); and Marcus Tate v. Lawson, CA 06-

01779-RBP (N.D. Ala. Nov. 17, 2006). In 2010, Taite filed a § 

1983 action in this District and sought to proceed in forma

pauperis. See Marcus Tate v. State of Alabama, CA 10-257-KD-M 

(S.D. Ala. Aug. 5, 2010). The Court held that because Taite had

previously filed at least three actions that were dismissed 

pursuant to §1915(e)(2)(B), he could not avail himself of the 

 2

 28 U.S.C. § 1915(e)(2)(B) provides: 

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 . . . 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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exception under § 1915(g), and, due to his failure to pay the 

$350.00 filing fee at the time he filed the action, his action 

was dismissed without prejudice. Marcus Tate v. State of 

Alabama, CA 10-257-KD-M (S.D. Ala. Aug. 5, 2010).

Taite filed the instant action on November 13, 2014 3 ,

without paying the filing fee. At the time, Taite was fully 

aware, in light of his litigation history, that he would be 

subject to §1915(g) again. Indeed, to date, this court and the 

United States District Court for the Middle District of Alabama 

have now issued orders dismissing at least six of Tate’s actions 

pursuant to § 1915(g). See Tate v. Alabama, 2010 U.S. Dist. 

LEXIS 79615, 2010 WL 3155281 (S.D. Ala. Aug. 4, 2010)(dismissing 

action under § 1915(g)); Tate v. Bivins, 2008 U.S. Dist. LEXIS 

52754, 2008 WL 2705388 (S.D. Ala. July 10, 2008)(dismissing 

action under 28 U.S.C. § 1915(g)); Tate v. Bass, 2007 U.S. Dist. 

LEXIS 94158, 2007 WL 4571256 (M.D. Ala. Dec. 26, 

2007)(recommending dismissal under the “three-strikes” 

provision) of 28 U.S.C. § 1915(g)); report and recommendation 

adopted by Tate v. Bass, 2008 U.S. Dist. LEXIS 3093 (M.D. Ala. 

Jan. 15, 2008); Tate v. Bass, 2007 WL 2333041, CV-07-0298-CB-M 

 3 Under the mailbox rule, absent contrary evidence, a prisoner’s 

complaint is deemed filed on the date it is delivered to prison 

officials for mailing. See Houston v. Lack, 487 U.S. 266, 271-72, 108 

S. Ct. 2379, 101 L. Ed. 2d 245 (1988); Adams v. United States, 173 

F.3d 1339, 1340-41 (llth Cir. 1999); Washington v. United States, 243 

F.3d 1299, 1301 (llth Cir. 2001).

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(S.D. Ala. Aug. 13, 2007)(dismissing action under § 1915(g));

and Tate v. Bass, 2007 U.S. Dist. LEXIS 46281, 2007 WL 1834892 

(S.D. Ala. June 22, 2007) (dismissing action under §1915(g)). 

In order to avoid dismissal of this action under § 1915 

(g), Taite must satisfy the exception in § 1915(g), which 

requires him to show that he was “under imminent danger of 

serious physical injury” at the time that he filed the 

complaint. 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). 

Here, not only has Taite failed to allege that he was under 

imminent danger of physical injury at the time he filed this 

action, but the allegations in his complaint are completely 

nonsensical. For instance, in one section of his complaint, 

Taite requests an order directing the Internal Revenue Service 

to “discharge all debts, judgment, convictions, and sentences 

with state and federal agencies.” (Doc. 1 at 4). In another 

section of the complaint, he asks that “all filing fees of this 

application be charged and billed to . . . United Washitaw 

Empire Sovereignty National Nation State Governmental Tribunal, 

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King Marcus O. Tate-El-Bey-Tey-Washitaw.” (Id. at 7). The 

bottom line is that Taite’s complaint does not meet the imminent 

danger exception provided under § 1915(g). 

Since Taite cannot avail himself of the § 1915(g) exception 

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

commenced this action, this 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, the undersigned recommends 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 

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to plain error review of the magistrate judge’s factual 

findings.” Dupree v. Warden, Attorney General, State of Alabama, 

715 F.3d 1295, 1300 (11th Cir. 2011). 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 by reference or 

refers to the briefing before the Magistrate Judge is not 

specific.

DONE this 8th day of December, 2014.

 /s/ SONJA F. BIVINS 

UNITED STATES MAGISTRATE JUDGE

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