IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION

GERARD DAVID McCREE,JR.,#203840,:

Plaintiff, :

vs. : CIVIL ACTION 15-00249-CG-B

GWENDOLYN GIVENS, et al., :

Defendants. :

REPORT AND RECOMMENDATION

This § 1983 action, filed by Gerard David McCree, Jr., 

an Alabama prison inmate proceeding pro se and seeking 

leave to proceed in forma pauperis, 1 was referred to the 

undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and S.D. 

Ala. GenLR 72(a)(2)(R) for appropriate action. During the 

screening of the Complaint, the Court discovered that this 

action is subject to the provisions of 28 U.S.C. § 1915(g). 

Accordingly, it is recommended that this action be 

dismissed without prejudice under 28 U.S.C. § 1915(g) for 

the reasons noted below. 

I. Section 1915(g) and Plaintiff’s Qualifying Prior 

Actions.

 1 By separate order, the Court is rescinding its prior 

Order granting McCree leave to proceed in forma pauperis

and returning the $15.63 partial filing fee to him. (Doc. 

4).

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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.

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).

After reviewing the records of the United States 

District Courts for the Southern, Middle, and Northern 

Districts of Alabama, the Court discovered that at least 

three of McCree’s prior actions or appeals were dismissed 

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as frivolous, malicious, or for failure to state a claim 

upon which relief can be granted, namely, McCree v. 

Colbert, CA 03-0022-CG-C (S.D. Ala. Sept. 12, 2003); McCree 

v. Marshall, CA 03-0774-ID-SRW (M.D. Ala. July 24, 2003)

(summary judgment granted for defendants), appeal dismissed 

as frivolous, (11th Cir. Mar. 30, 2006); and McCree v. 

Jones, 07-0280-KOB-JEO (N.D. Ala. May 9, 2007). 2 Thus, 

McCree has “three strikes,” thereby bringing this action 

within the scope of 28 U.S.C. § 1915(g).

In order to avoid the dismissal of the present action 

under § 1915(g), McCree must satisfy § 1915(g)’s exception, 

which requires that he show that he was “under imminent 

danger of serious physical injury” at the time he filed his 

Complaint. Adbul-Akbar v. McKelvie, 239 F.3d 307, 315 (3d 

 2

 In completing the form complaint in this action, 

McCree was less than forthcoming in providing information 

about his prior litigation history. While he disclosed that 

he filed prior lawsuits relating to his imprisonment and 

that there was a dismissal for failure to state a claim, he 

does not provide specific information about his cases, and 

the grounds for dismissal. However, the Court’s decision 

in McCree v. Myers, CA No. 12-00573-CG-M (S.D. Ala. 2013), 

which was dismissed pursuant to 28 U.S.C. § 1915(g), 

clearly placed McCree on notice that three of his prior 

cases and appeals counted as strikes under 28 U.S.C. § 

1915(g). Furthermore, in his instant petition, McCree 

includes language indicating that the three strikes 

provision does not apply when a prisoner is in imminent 

danger of serious physical injury; thus, in filing this 

action, it appears that he understands that he must satisfy 

§ 1915(g)’s exception in order to proceed with this action 

without the prepayment of fees. (Doc. 1 at 6).

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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 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) (the imminent danger of serious physical 

injury must be faced at the time the complaint is filed, 

not at a prior time). 

II. Analysis. 

A. Complaint. (Doc. 1).

In reviewing the allegations in McCree’s Complaint

(Doc. 1), the Court does not discern any claim showing that 

McCree was “under imminent danger of serious physical 

injury” at the time he filed the Complaint. McCree

complains about Holman Correctional Facility’s (“Holman”) 

segregation cells being “risky” because hot electrical 

wires hang from the “roof” (which the Court interprets to 

be the ceiling) near a working water system, which “could 

[be] set off at anytime and cause death.” (Doc. 1 at 6, 

9). He also avers that inmates have asked to be moved from 

those cells, but when they are moved, other inmates are 

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moved into them. (Id.). McCree asserts that on April 15, 

2015, he was moved into cell K-64 after another inmate’s 

request to be moved from the cell because it was without 

lights was granted. (Id. at 5, 8, 12). Then, McCree made 

the same request to be moved, but the “Defendants have not 

responded reasonably” to his requests. (Id. at 8). McCree 

seeks to be moved to a cell that is safe, which does not 

have an electrical wire hanging from the ceiling of the 

cell. (Id.).

According to McCree, inmates use the lights in their 

segregation cells to charge their cell phones, which they 

purchase from guards. (Id.). McCree avers that inmates 

remove the covers from the light in the segregation cell, 

and then cut the live electrical wires so that they can 

place a charger on the wires. (Id. at 7-8). McCree has 

included with his complaint a diagram, that he purportedly 

drew of the interior of cell M-30, as opposed to cell K-64,

which is the cell that many of McCree’s complaints are 

based on. McCree alleges that over 100 of the 200 cells in 

the segregation unit are in this condition. (Id. at 11).

McCree indicate that prior to his incarceration in cell K64, he was incarcerated in cells M-30 and M-25. (Id. at 

5). Nevertheless, his diagram purports to reflect the 

position of the wires hanging from the ceiling and a water 

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source in the ceiling, which are separate. (Id. at 11).

The diagram does not include any measurements nor is the 

water described. Based on a number of prisoner cases 

arising out of the Holman facility on the Court’s docket, 

the Court takes judicial notice of the fact that at the 

Holman facility, showers are not located in the segregation 

cells but are instead located in a separate area for 

showering. Key v. Kimbrel, CA 13-371-CG-M, 2014 WL 4986752, 

at *1 (S.D. Ala. 2014) (unpublished); Allen v. Moody, CA 

No. 08-00227-WS-B, 2010 WL 3338932, at *1 (S.D. Ala. 2010) 

(unpublished).3 And, McCree does not allege that a shower 

is located in his cell.

For relief, McCree requests a preliminary and 

permanent injunction directing Holman officials to close

down the unsafe cells in Holman’s segregation unit because 

they are “unsafe,” “overcrowded,” and “harsh.” (Id. at 9, 

14).

Realizing that § 1915(g) applies to him, McCree argues 

that he is facing serious injury or even death and that § 

1915(g)’s exception contemplates the risk of future injury. 

(Id. at 6). To this end, McCree makes vague and conclusory 

 3 The Court takes judicial notice of its records. 

Nguyen v. United States, 556 F.3d 1244, 1259 n.7 (11th Cir. 

2009). 

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statements about Eighth Amendment law and cases without 

connecting specific facts to these legal references. (Id.

at 6-7). 

In order to satisfy the § 1915(g) exception, “the 

issue is whether his complaint, as a whole, alleges 

imminent danger of serious physical injury.” Brown, 387 

F.3d at 1350. 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, and vague 

allegations of harm and unspecific references to injury are 

insufficient.” Ball v. Allen, CA No. 06-0496-CG-M, 2007 WL 

484547, at *1 (S.D. Ala. Feb. 8, 2007) (unpublished) 

(citations and quotation marks omitted) (Granade, C.J.). 

Furthermore, the allegations must demonstrate that at the 

time the complaint was filed, the danger existed. Id. at 

*2. 

In the present action, McCree’s Complaint is devoid of 

allegations of any injury that he has sustained as a result 

of the exposed wires and the dormant water source. With 

regard to the potential for future injury from the combined 

sources, his allegations lack information showing the 

probability of injury occurring and the immediacy of that 

injury and its seriousness. That is, he does not explain 

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whether the wires from the ceiling are within his reach, or 

whether there is any need for him to touch either the wires 

or the ceiling. Nor does he explain how the water and hot 

wires could plausibly connect to possibly cause him injury. 

More to the point, McCree’s allegations are vague and not 

sufficiently specific to demonstrate that he was in 

imminent danger of serious physical injury at the time of 

the filing of his Complaint. Brown, 387 F.3d at 1349 

(reviewing cases addressing the serious physical injury 

exception and noting in Martin v. Shelton, 319 F.3d 1048, 

1050 (8th Cir. 2003), the prisoner’s allegations of being 

forced to work in inclement weather so defendants could 

kill him was found to be conclusory and did not satisfy § 

1915(g)’s exception); Moten v. Adams, No. 1:06-cv-924-AWJMJS, 2012 WL 2529204, at *2 (E.D. Cal. Jan. 25, 2011) 

(holding the plaintiff failed to show imminent danger of 

serious physical injury because he failed to show how the 

heat was an immediate threat to him)(unpublished); Ball,

2007 WL 484547 at *2-3 (holding that allegations of 

unsanitary showers, food service, and containers were “an 

imminent danger to Plaintiff’s health and well being[] 

[were] conclusory allegations[s] that merely demonstrate[d] 

‘that plaintiff is a seasoned vexatious litigant who has 

read 28 U.S.C. § 1915(g) and is manipulating it to serve

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his ends.’”)(citation omitted)(unpublished). Thus, the 

Court concludes that McCree has failed to show that he was 

“under imminent danger of serious physical injury” at the 

time he filed his Complaint. 

B. Amended Complaint. (Doc. 5).

After filing his Complaint in May 2015, McCree, on 

August 10, 2015, filed a “Motion to Amend the 1983 Civil 

Action Filed by the Plaintiff on 06-25-15, The Complaint 

herein State[]s [the] Full Cause of this Motion as Follows”

(“Amendment”). (Doc. 5). In the Amendment, McCree states 

that he wants to “keep” all of the claims in his original 

Complaint. (Id. at 1). As for his new claims, McCree 

complains about being moved from the “unsafe cell K-48 to 

cell M-24” during the second week of July, 2015.4 (Id. at 

1-2). He contends that in cell K-48, hot electric wires 

were coming out of the cell’s lights. (Id. at 1). And 

that in cell M-24, he did not have a working toilet or 

water system. (Id. at 2). According to McCree, the cell 

was 80 degrees and had human waste in the toilet when he 

arrived. (Id.). After two weeks of being unable to flush 

the toilet, on August 4, 2015, Officer McCant came with 

 4 Since this allegation, McCree has been moved to 

cell L-44, as reflected in the return address on his letter 

received by the Court on November 12, 2015. (Doc. 6 at 2).

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bags and cups for McCree to remove the waste into the bags 

with the cups. (Id.). 

McCree alleges that the “Defendants had actual 

understanding that the toilet[’]s condition was not working 

and held inside, someone else[’]s human waste.” (Id.). 

McCree further alleges that “being [held] in this cell with 

his own bodily waste without working toilet and water 

thereto is harmful in [it] deprives the plaintiff [of] his 

right to sanitary toilet housing.” (Id. at 3). McCree 

also alleges that he “has been finding hard to get clean 

air, throwing up and suffering now and in the future from 

the ongoing acts in a way that is extreme or outrageous 

resulting in severe or extreme emotional distress.” (Id.).

McCree’s remaining allegations in the amendment are 

vague and conclusory, that is, they contain legal language 

but do not provide any facts. For example, McCree alleges 

that he is being held in a cell “that represents human 

cruelty by the Defendants who [are] responsible when both 

Defendants knew or should have known that they [were] 

acting illegally. . . . Both Defendants supervisor[]s 

directly participated in the violation when unreasonabl[]y 

know[]s that most of their 200 segregation cell[]s is badly 

not-in-condition to house human inmates in those cell[]s.[]

[M]oreover the Defendant supervisor[]s learned of the 

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violation of the Plaintiff’s rights but failed to do 

anything to fix the situation, and the defendants created a 

policy or custom allowing or encouraging the illegal acts.” 

(Id. at 3). McCree also asserts a violation of his First 

Amendment rights and liberty interests, and he speculates 

about consequences of the alleged violations, e.g., 

emotional distress could cause him to be placed on 

medications with side effects that would affect his right 

to petition the government because it could affect his 

ability to communicate in his criminal case. (Id.). For 

relief, McCree requests damages. (Id.).

Instead of filing a new action, McCree filed the 

Amended Complaint based on cell K-48’s exposed hot 

electrical wires and on cell M-24’s lack of water and a 

working toilet. The one common condition of which McCree 

complains in both his original Complaint (cell K-64) and 

Amended Complaint (cell K-48) is the exposed hot, electric

wires hanging from the ceiling in the two cells to which he 

was assigned. The lack of water and a properly functioning 

toilet is alleged to have occurred in only one cell, cell 

M-24. Nevertheless, McCree’s allegations have the tenor of 

challenging the conditions of numerous cells in 

segregation, (although the faulty toilet condition is not 

mentioned in McCree’s original Complaint). District 

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courts, however, are instructed to treat the complaint as a 

whole when determining if the complaint alleges an imminent 

danger of serious physical injury. Brown, 387 F.3d at 1350

(holding the amended complaint alleged an imminent danger 

of serious physical injury and should have been allowed 

pursuant to Fed.R.Civ.P. 15(a) even though the original 

complaint was subject to dismissal pursuant 28 U.S.C. § 

1915(g)).

In seeking to come with the § 1915 (g) exception, it 

is incumbent on the plaintiff to allege “specific fact 

allegations of ongoing serious physical injury, or a 

pattern of misconduct evidencing the likelihood of imminent 

serious physical injury,” with respect to the danger 

existing at the time the complaint was filed. Ball, 2007 

WL 484547, at *1-*2 (citations and quotation marks 

omitted). “The Eleventh Circuit has construed this 

exception to require specific allegations of present 

imminent danger that may result in serious physical harm. . 

. . 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).” Id. at *1 (citations and quotation marks 

omitted); cf. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 

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1937, 1951, 173 L.Ed.2d 868 (2009) (Conclusory allegations 

are not entitled to a presumption of truth). 

Here, the only injury of which McCree complains in his 

Amended Complaint is “throwing up.” (Doc. 5 at 3). McCree 

makes a single reference to “throwing up”, and he does not 

provide any information about how he was affected by the 

vomiting or the frequency of the vomiting. Moreover, no 

information is offered about alternative means that were 

made available to him with respect to toilet usage and 

water access, e.g., access to both in the shower area. 

And, McCree does not allege that he signed up for sick call 

or was seen by medical personnel for his vomiting. 

Although the cell conditions described by McCree were poor, 

and “throwing up” is not a pleasant experience, an 

occasional bout of vomiting is a normal human occurrence. 

Alexander v. Tippah Cnty., Miss, 351 F.3d 626, 632 (11th

Cir. 2003)(finding that vomiting from smelling raw sewage 

on the isolation cell’s floor was a de minimis injury (if 

any) as there were no allegations that the experience 

warranted medical attention, was a symptom of a more 

serious condition, or had lasting effects), cert. denied, 

541 U.S. 1012 (2004); Scott v. Sussex State Prison, No. 

CA.A.7:06CV000369, 2006 WL 1876963, at*3 (W.D. Va. 2006) 

(unpublished) (finding allegations of vomiting were 

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insufficient to state a serious injury because nausea could 

be attributed to stress or illness, not necessarily 

“sediment rust” in the water), aff’d, 207 F. App’x 267 (4th

Cir. 2006); White v. Dawkins, No. 3:05CV50-01-MU, 2005 WL 

2076447 (W.D.N.C. 2005) (unpublished) (finding the 

allegations, which included giving plaintiff antibiotics 

that caused him to vomit, did not demonstrate an imminent 

danger of serious physical injury). 

Considering McCree’s allegations, they do not suggest 

that he was in imminent danger of serious physical injury. 

Further, his allegations that he was held in a cell with an 

inoperable toilet containing waste that is “harmful [and] 

deprives [him of] his right to sanitary toilet housing,” 

(Doc. 5 at 3), that this condition posed an unreasonable 

risk of serious harm to his health and safety and that the 

Defendants knew the condition “would result in a 

constitutional violation” or that it was “highly 

predictable that a constitutional violation would occur” 

(id.), are not sufficient to demonstrate an imminent danger 

of a future serious physical injury.5

 5 The Court observes that there are other deficiencies 

in McCree’s Complaint and Amended Complaint, which are not 

being addressed in light of the Court’s finding that McCree 

has not satisfied the § 1915 (g) exception. One 

significant deficiency worth noting arises from the fact 

that the sole Defendants named by McCree in this action are 

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Accordingly, the Court finds that the allegations in 

McCree’s Amended Complaint are conclusory and vague, and 

they are lacking sufficient facts so much so that the Court 

cannot provide much of a liberal construction without 

venturing into the speculative. Moreover, they are replete 

with terms of legal art that are unsupported by facts. 

Whereas, it is McCree’s burden to demonstrate that he was 

in imminent danger of serious physical injury at the time 

he filed his Complaint. Cf. Bell Atlantic Corp. v. 

Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 1966, 167 

L.Ed.2d 929 (2007)(allegations must show plausibility in 

order to state a claim); Ashcroft v. Iqbal, 556 U.S. 662, 

678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)(“A claim 

has facial plausibility when the plaintiff pleads factual 

content that allows the court to draw the reasonable 

 

Warden Gwendolyn Givens and Warden Meyers, whom McCree 

identifies as supervisors. (Doc. 1 at 5; Doc. 5 at 3). 

McCree’s allegations against these Defendants are couched 

in terms used for describing the law concerning supervisor 

liability. For instance, McCree asserts that Defendants 

had an “actual understanding” before he was moved into the 

cell that the toilet was not working and contained someone 

else’s waste (Doc. 5 at 2), “directly participated” in the 

violation by knowing most of the 200 segregation cells are 

not in the condition to house humans (id. at 3), “created a 

custom or policy of allowing or encouraging illegal acts” 

(id.), and failed to do anything to correct the situation 

after learning of the violations of his rights through 

complaints. (Id. at 2-3). McCree has offered no facts to 

support these conclusory allegations. 

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inference that the defendant is liable for the misconduct 

alleged.”). Because McCree has failed to demonstrate that 

he was in imminent danger of serious physical injury when 

he filed his Complaint, this action is due to be dismissed 

without prejudice. See White v. Colorado, 157 F.3d 1226, 

1231-32 (10th Cir.) (denying the “imminent danger of 

serious physical injury” exception because the “Amended 

Petition [wa]s largely a collection of vague and utterly 

conclusory assertions” and the plaintiff never identified 

the serious physical injury that was imminent), cert. 

denied, 526 U.S. 1008 (1999); Skillern v. Paul, 202 F. 

App’x 343, 343 (11th Cir. 2006)(section 1915(g)’s exception 

was not satisfied when the plaintiff alleged that he may 

suffer a serious physical injury)(unpublished); 6 Smith v. 

Harris, No. 5:07cv27/RS, 2007 WL 710172, at *3 (N.D.

Fla.2007) (“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).”); Martin v. Shelton, 319 F.3d 1048, 1050 (8th 

Cir. 2003) (finding as conclusory, and thereby insufficient 

to support § 1915's exception, the general assertion that 

 6 “Unpublished opinions are not considered binding 

precedent, but they may be cited as persuasive authority.” 

11TH CIR. R. 36-2 (2005).

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“defendants were trying to kill [plaintiff] by forcing him 

to work in extreme conditions despite his blood pressure 

condition”).

III. Conclusion.

Because McCree cannot avail himself of § 1915(g)’s 

exception, and on account of his failure to pay the $400 

filing fee at the time he filed this action, this action is 

due to be dismissed without prejudice. Dupree, 284 F.3d at 

1236 (holding that an action must be dismissed without 

prejudice when an inmate who is subject to § 1915(g) does 

not “pay the filing fee at the time he initiates the 

suit”); 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. 

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72(b); S.D. ALA. L.R. 72.4. The parties should note that 

under Eleventh Circuit Rule 3-1, “[a] party failing to 

object to a magistrate judge's findings or recommendations 

contained in a report and recommendation in accordance with 

the provisions of 28 U.S.C. § 636(b)(1) waives the right to 

challenge on appeal the district court's order based on 

unobjected-to factual and legal conclusions if the party 

was informed of the time period for objecting and the 

consequences on appeal for failing to object. In the 

absence of a proper objection, however, the court may 

review on appeal for plain error if necessary in the 

interests of justice.” 11th Cir. R. 3-1. 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 the 26th day of January, 2016.

 /s/SONJA F. BIVINS + 

 UNITED STATES MAGISTRATE JUDGE

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