IN THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DERIC LaVELLE MAY, # 209534, :

Plaintiff, :

vs. : CIVIL ACTION 15-30-KD-M

BENNIE ANDREWS, et al., :

Defendants. :

REPORT AND RECOMMENDATION

This § 1983 action, filed by an Alabama prison inmate 

proceeding pro se, was 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 Plaintiff filed the Complaint, he also 

filed a Motion to Proceed Without Prepayment of Fees instead of 

paying the $400 filing fee, which he is required to pay as a 

“three-striker,” unless he meets the exception to 28 U.S.C. § 

1915(g). After reviewing Plaintiff’s Complaint, it is 

recommended 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 

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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).

Even though Plaintiff is known to this Court as a “threestriker,” the Court 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 discovered 

Plaintiff has seven actions and appeals that were dismissed 

based on one of the foregoing reasons, namely, May v. Culliver,

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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 12-0703-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-KD-B (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), Plaintiff 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 

 1

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

reflects nine other actions filed by Plaintiff in addition to 

another action filed in the Northern District of Alabama. Based 

on a review of all Plaintiff’s actions, eight of Plaintiff’s 

actions contain claims based on medical issues related to 

Plaintiff’s head, namely, May v. Culliver, CA 10-0121-CG-C; May 

v. Patterson, CA 11-0675-KD-B; May v. Barber, CA 13-0237-CB-C; 

May v. Barber, CA 13-0429-CB-M; May v. Hetzel, CA 14-0155-CG-C; 

May v. Thomas, CA 13-0385-CB-M; May v. Barber, CA 14-0479-WS-N; 

and May v. Stone, CA 15-25-KD-B (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. Stone, CA 

15-0025-KD-B.

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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 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 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. Allegations in Complaint. (Doc. 1).

On January 23, 2015, the Court received Plaintiff’s 

Complaint signed January 15, 2015. (Doc. 1 at 7). In the 

Complaint, Plaintiff identifies October 20, 2014 as the date of 

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

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Defendants, Bennie Andrews, Health Services Administrator; 

Walter Myers, Warden; and Ms. McCea, Registered Nurse and 

Director of Nursing. (Id. at 5).

On October 14, 2014, Plaintiff alleges that he saw Dr. 

Kouns due to frequent and severe headaches. (Id. at 4). 

Plaintiff told Dr. Kouns that he had a “ventriculoperitoneal 

shunt malfunction[, which] maybe what is causing his headaches.” 

(Id.). Dr. Kouns requested that Plaintiff receive a CT scan of 

his brain. (Id.). On October 24, 2014, Plaintiff was taken to 

Atmore Community Hospital for a CT scan. (Id.). 

When Plaintiff requested the results, Defendant Andrews 

told him that the final impression was: “Postsurgical changes 

within the brain. Ventriculostomy shunt appears to be in good 

position and no change in ventricle size is noted. No acute 

findings are seen.” (Id. at 8). Plaintiff contends that the 

report does not mention if his “shunt is working as it was 

designed to work.” (Id.).

On December 19, 2014, Plaintiff signed up for sick call, 

requesting that his shunt (“shunt” or “VP shunt”) be replaced 

because “it has collapsed and does not refill.” (Id.). 

Defendant McCea “asked [him] was he a doctor.” (Id.). 

Plaintiff told “her that a neurosurgeon in his medical reports 

of July 12, 2010 revealed the shunt has collapsed and does not 

refill.” (Id.). Plaintiff argues that Defendant McCea 

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“attempted to make up a clever trick by acknowledging that [his] 

[two] CT scans revealed his shunt to be working.” (Id.).

To support his claim, Plaintiff maintains that his CT scan 

of February, 2014, “does not mention if the [VP shunt] is 

working as it was designed to work [because] the only thing the 

report says pertaining to [his] [VP shunt] is, ‘there is a VP 

shunt ‘tube’ that enters right superior occipital bone and goes 

into the right lateral ventricle.” (Id. at 9). Then, the CT 

scan of October 24, 2014, states that his “[v]entriculostomy 

appears to be in good position.” (Id.). Plaintiff asserts that 

these two CT scans stated that his VP shunt “was working as it 

was designed to work.” (Id.). 

Plaintiff advised “Ms. McCae that she should look in 

volumes 1 and 2 of his medical file [because there] were medical 

issues left unattended to and /or unchecked.” (Id.). Defendant 

McCea continued to look in volume 3 of his medical records, then 

closed the file, and told him good-bye. (Id.). Plaintiff 

alleges Defendant McCea’s response was “ineffective” to his 

request to have his “malfunctioning shunt replaced,” and as 

director of nursing, her actions were “medically inappropriate.” 

(Id.).

On December 19, 2104, Plaintiff’s grievance was denied by 

Defendant Andrews, who advised Plaintiff that “this discussion 

regarding [his] malfunctioning shunt is closed.” (Id. at 10). 

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Plaintiff contends that Defendant Andrews “made a decision . . . 

that requires[s] a specialist[’s] attention.” (Id.). 

Furthermore, Plaintiff claims that Defendant Myers failed 

to ensure that Defendants were adequately trained, and to 

oversee and discipline them on October 30, 2014 and December 19, 

2014. (Id.). 

At the end of the allegations makes broad, conclusory 

statements without providing a connection to a specific 

Defendant. In them, Plaintiff states that his VP shunt was 

implanted in his right ventricle to manage cerebrospinal fluid 

from his hydrocephalus. (Id. at 10). The excessive build-up of 

this fluid has caused him daily discomfort from frequent and 

severe headaches, equilibrium problems, tiredness, and 

irritability stemming from Defendants’ refusal to provide 

something to alleviate the pain or their delay in prescribing a 

pain reliever, which was given only after his family contacted 

higher officials. (Id.). “Defendant’s obdurate refusal was

clearly wanton[n]ess, as of this date ([Plaintiff]) is getting 

nothing to alleviate his pains from the hydrocephalus.” (Id.). 

Plaintiff contends that “[t]he total withdrawal of medical care 

constitutes an imminent damage of serious physical injury.” 

(Id. at 10). He argues that his shunt, which has collapsed and 

does not refill, “can further deteriorate to pose an imminent 

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danger of serious physical injury if the shunt is left 

untreated.” (Id.).

For relief, Plaintiff requests compensatory and punitive 

damages, attorney’s fees, and costs taxed to Defendants. (Id.

at 7).

III. Analysis.

Plaintiff’s Complaint was filed between January 15, 2015,

when he signed the Complaint, and January 23, 2015, when the 

Court received his Complaint. (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 does not 

need to be determined because the dates that are connected to a 

named Defendant range from October 30, 2014, to December 19, 

2014, not near the time of the Complaint’s filing in January, 

2015. (Doc. 1 at 5-6). 

October 30th and December 19th are the dates when 

Defendants Andrews and McCea interacted with Plaintiff. (Id.). 

These same dates are identified for Defendant Myers’ involvement 

as a prison official who allegedly supervises the medical 

Defendants. (Id. at 5). 

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However, the allegations do not show that any named 

Defendants was involved in any of Plaintiff’s claims at the time 

the Complaint was filed in January, 2015. In fact, the only 

allegation that correlates to the time of the Complaint’s filing 

is the allegation that Plaintiff was not receiving anything to 

alleviate his pain on the date that he signed the Complaint. 

(Doc. 1 at 10). No Defendant is connected to this allegation,

and the allegation does not allege or reflect that on that date 

there was a great likelihood that he would suffer an imminent 

serious physical injury. 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, 1950, (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). Granted, the underlying 

hydrocephalus and VP shunt’s condition have been recognized as a 

serious medical need. See May v. Patterson, CA No. 11-675-KD-B 

(S.D. Ala.)2 (recognizing Plaintiff’s serious medical need), 

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

Defendants furnished with their Special Report a copy of 

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Plaintiff’s medical records. (Doc. 32). These records show 

that on July 12, 2010, Dr. Eugene Quindlen, a neurosurgeon at 

the University of South Alabama (“USA”), examined Plaintiff for 

increased headaches and ataxia. (Doc. 32-3 at 19). He noted 

Plaintiff’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 Plaintiff in 2008, he could find 

no particular reason for his headaches. (Id.). He observed 

that Plaintiff had a history of a severe stroke, and was taking 

tegretol for seizures. (Id.). 

The records show that on July 12, 2010, Plaintiff was 

having severe headaches, dizzy spells, and fatigue (id.); 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.). His review of the x-rays showed no evidence 

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

Quindlen found that Plaintiff was “healthy appearing and in no 

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

elevated intracranial pressure [, but instead was] having poor 

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

admit Plaintiff 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 

Plaintiff’s medical records, noting that Plaintiff 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 Plaintiff because Plaintiff refused to have 

surgery performed by the neurosurgeon at USA and wanted to have 

his original surgeon at UAB, who had given him the shunt, to 

perform the surgery. (Id.). The UAB option was not available. 

(Id.). Plaintiff refused to have the surgery. (Id. at 30). 

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

granting Defendants summary judgment and finding no deliberate 

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

The extensive medical treatment that Plaintiff received was 

recounted. After the District Court adopted the Report and 

Recommendation and entered Judgment for Defendants (Doc. 75), 

Plaintiff appealed. 

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

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

Eleventh Circuit noted that Plaintiff’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 Plaintiff had “not identified any evidence 

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

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appeal dismissed as frivolous (11th Cir. June 26, 2014) (holding 

that the District Court properly granted summary judgment) (Doc. 

94). But no allegations are present that Plaintiff will suffer 

any injury that is imminent from these conditions. Accordingly, 

the undersigned concludes that Plaintiff’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 Plaintiff 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 this action, Plaintiff’s 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 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. 

 

otherwise demonstrate that the Defendant rendered inadequate or 

delayed medical care. [Plaintiff] instead has demanded a 

physician of his own choosing.” (Id.)

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

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

surrounding medical issues with his head is recounted in the 

Magistrate Judge’s Report and Recommendation recommending the 

dismissal of Plaintiff’s action pursuant to 28 U.S.C. § 1915(g). 

(Doc. 2).

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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 

by reference or refers to the briefing before the Magistrate 

Judge is not specific.

DONE this 23rd day of March, 2015. 

s/ BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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