IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DERIC LaVELLE MAY, # 209534, :

Plaintiff, :

vs. : CIVIL ACTION 15-304-KD-M

WALTER MYERS, 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. Plaintiff, who is known to the Court 

as a “three striker,” filed a Motion to Proceed Without 

Prepayment of Fees when he filed his Complaint 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). Plaintiff is aware of this requirement, 

as several of his actions have been dismissed pursuant to § 

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.

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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).

In the present action, Plaintiff filed a Complaint 

that is essentially a duplicate of the Complaint in May v. 

Andrews, CA No. 15-211-KD-N, 2015 U.S. Dist. LEXIS 71442 

(S.D. Ala. May 7, 2015), objected to and dismissed without 

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prejudice by, 2015 U.S. Dist. LEXIS 71439 (June 2, 2015),1

which was deemed by Plaintiff to be a refiling of May v. 

Andrews, CA No. 15-30-KD-M, 2015 U.S. Dist. LEXIS 53856 

(S.D. Ala. April 24, 2015), which were both dismissed 

pursuant to 28 U.S.C. § 1915(g). The present action’s 

Defendants are the same as the named Defendants in the 

prior actions, namely, Bennie Andrews, a registered nurse 

and the Health Services Administrator at Holman 

Correctional Facility (“Holman”); Ms. McCea, Registered 

Nurse and Director of Nursing at Holman; and Walter Myers, 

Warden at Holman. (Doc. 1 at 5-6). The present 

Complaint’s allegations vary only slightly from the prior 

 1 Plaintiff filed and objection to the report and 

recommendation entered in CA No. 15-0211-KD-N claiming the 

action was a refiling of CA No. 15-030-KD-M and the Court 

failed to adhere to its prescribed Local Rule 3.3(b). (See

CA No. 15-211-KD-N, Doc. 5). 

Local Rule 3.3(b) states “[w]henever an action or 

proceeding terminated by entry of a notice or order of 

dismissal is refiled without a substantial change in issues 

or parties, it shall be assigned or transferred to the 

district judge to whom the original action or proceeding 

was assigned, unless otherwise ordered by the chief judge.”

 While this rule has no bearing on the outcome of 

Plaintiff’s action, nor does it defeat the purpose and 

implementation of §1915(g), Plaintiff should be aware that 

CA No. 15-211-KD-N was assigned to the same United States 

District Judge as his previous case, CA No. 15-30-KD-M, as 

has this current action. The report and recommendation of 

CA No. 15-211-KD-N was adopted over May’s objection on June 

2, 2015, and judgment was entered against Plaintiff May. 

See May v. Andrews, CA No. 15-211-KD-N, 2015 U.S. Dist. 

LEXIS 71439 (June 2, 2015).

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action, with the chief variation being the specific factual 

detail attached to the claim against Defendant Myers, which 

states: 

An example of (Myers) failure to install any form 

of audit procedures to check on the performance 

of it[s] contracter[sic] of medical services is, 

he allowed the medical staff to begin (May’s) VP 

shunt examination incorrect[ly]. . . . On October 

30, 2014, (May) was taken to a[n] outside 

hospital for a CT scan of his head, however, the 

examination must be started with an X-Ray of 

(May’s) skull to check for increase of cranial 

cavity size. On October 14, 2014 (Dr. Kouns) 

did discuss with (May) that X Rays was going to 

be ordered, however, treatment was interfered 

with and no X Rays were ordered and no other 

tests were ordered and (May) still suffers with a 

VP shunt malfunction and nothing else has been 

done. The total withdrawal of medical treatment 

for (May’s) serious medical condition has caused 

rapid deterioration to his condition. 

(Id. at 8). The claim against Defendant Myers in the 

prior action is merely a conclusory allegation and

fails to include the details of May’s hospital 

experience, specifically the lack of an x-ray being 

performed on October 30, 2014; the previous complaints 

further fail to allege that Dr. Kouns recommended an 

x-ray to be performed along with a CT scan or even 

mention that a x-ray test was to be performed along 

with the CT scan. (See and compare Docs. 1). 

Otherwise, the claims against the defendants are 

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virtually identical with variations being mostly 

grammatical changes.2

The primary reason that the prior action did not 

satisfy § 1915(g)’s exception was Plaintiff did not show 

that he was “under imminent danger of serious physical 

injury” when the Complaint was filed in April, 2015, due to 

the allegations against the named Defendants having 

transpired from October, 2014, through December, 2014. 

2015 U.S. Dist. LEXIS, at *6-11. Now, in the present 

 2 In the current complaint, May alleges that on October 

30, 2014, “(Andrews) displayed grossly deficient medical 

care by relying on an incomplete medical report that denied

(May) medical care. The medical report does not mention if 

the VP shunt is working as it was designed to work” (doc. 1 

at 5), and that on December 19, 2014 (McCea) displayed 

grossly deficient medical care by relying on an incomplete 

medical report that denied (May) medical care. The report 

does not mention if the shunt is working as it was designed 

to work.” (Id. at 6).

In the previous complaint of CA-15-0211-KD-N, May 

alleges that “on October 30, 2014, (Andrews) displayed 

grossly deficient medical care by relying on an incomplete 

medical report that denied (May) medical treatment. The

report (Andrews) relied on to make his decision does not 

reveal that (May’s) VP shunt is working as it was designed 

to work” (doc. 1 at 5), and that “on October 30, 2014 

(McCea) displayed grossly deficient medical care by relying 

on an incomplete medical report to deny (May) medical 

treatment. The report (McCea) relied on does not reveal 

that (May’s) VP shunt is working as it is designed to 

work.” (Id. at 6). May further claims that on December 

19, 2014, Andrews denied the grievance May filed pertaining 

to his VP shunt malfunction, stating claiming that Andrews 

“can not make a decision in his own self interest about 

(May’s) CT scans and VP shunt malfunction . . . .” (Id. at 

10-11).

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action, his allegations are essentially the same and arise 

during same time period, October, 2014, to December, 2014, 

but the time of the present Complaint’s filing, June 8, 

2015 (doc. 1 at 9), is even further removed in time from 

when Plaintiff’s claims arose.3 See Houston v. Lack, 487 

U.S. 266, 276, 108 S. Ct. 2379, 2385, 101 L.Ed.2d 245 

(1988) (filing occurs when a prisoner delivers a pleading 

to prison officials for forwarding to the court). 

Moreover, in the Plaintiff’s present and prior actions, he 

 3 Absent evidence to the contrary, the Court assumes 

that Plaintiff’s complaint was delivered to prison 

authorities for mailing on the day that May signed it. See 

Washington v. U.S., 243 F.3d 1299, 1301 (11th Cir. 2001). 

Under the "mailbox rule," "a prisoner's pro se petition or 

complaint is deemed filed the date it is delivered to 

prison authorities for mailing." Id. However, in the case 

at hand, May failed to date his executed complaint. (See

Doc. 1 at 8). The envelope mailed to the Court containing 

the complaint was postmarked June 8, 2015 (doc. 1 at 9), 

and the Court received and docketed the complaint on June 

10, 2015. (Doc. 1). Given that the complaint is signed, 

but not dated, the Court turns to the postmark date of 

Plaintiff’s filing to determine when it was delivered to 

prison officials for mailing to determine the date of 

filing per the mailbox rule. Tuff v. Cooper, CV 311-077, 

2013 U.S. Dist. LEXIS 101488, *13-14 (S.D. Ga. June 28, 

2013) (citing McCiskill v. Smith, No. 3:09cv298/MCR/EMT, 

2012 U.S. Dist. LEXIS 24155, 2012 WL 612813, at *1 n.1 

(N.D. Fla. Jan. 25, 2012) (looking first to the date of the 

complaint and postmark date on envelope before deeming case 

filed on the date received by the clerk of court); United 

States v. Bell, 203 F. Supp. 2d 1287, 1291 (S.D. Ala. 2002) 

(using date of prison's "block stamp" on prisoner's mailing 

envelope as date pleadings were delivered to prison 

officials)).

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identifies the date of October 30, 2014, as when the 

complained of conduct occurred. (Docs. 1 at 4).

Inasmuch as the Court, namely, District Judge DuBose 

and Magistrate Judge Nelson, previously ruled on these 

allegations, the undersigned hereby adopts the reasoning 

set forth in May v. Andrews, CA No. 15-211-KD-N, 2015 U.S. 

Dist. LEXIS 71442 (S.D. Ala. May 7, 2015), objected to and 

dismissed without prejudice by, 2015 U.S. Dist. LEXIS 71439 

(June 2, 2015), and incorporates the majority of its 

opinion, which is set out below.

Even though plaintiff is known to this Court as a 

“three-striker,” 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, CA No. 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 No. 12-0703-KD-N (S.D. Ala. 

Sept. 5, 2013) (malicious), appeal dismissed 

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

Barber, CA No. 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 No. 11-0675-KD-B (S.D. Ala. Sept. 9, 2013) 

(dismissed on defendants’ summary judgment 

motion). FN1

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FN1 In addition to these actions and 

appeals, this Court’s docket reflects 

twelve other actions filed by plaintiff 

as well as another action filed in the 

Northern District of Alabama. Based on 

a review of all plaintiff’s actions, 

fifteen of plaintiff’s actions contain 

claims based on medical issues related 

to plaintiff’s head, namely, May v. 

Sexton, CA No. 97-2881-SCP-RRA; May v. 

Culliver, CA No. 10-0121-CG-C; May v. 

Patterson, CA No. 11-0675-KD-B; May v. 

Barber, CA No. 13-0237-CB-C; May v. 

Barber, CA No. 13-0429-CB-M; May v. 

Hetzel, CA No. 14-0155-CG-C; May v. 

Howard, CA No. 13-557-CG-C; May v. 

Thomas, CA No. 13-0385-CB-M; May v. 

Hetzel, CA No. 14-155-WS-M; May v. 

Barber, CA No. 14-0479-WS-N; May v. 

Stone, CA No. 15-25-KD-B; May v. 

Andrews, CA No. 15-30-KD-M; May v. 

Myers, CA No. 15-211-KD-N (present 

action); May v. Barber, CA No. 15-201-

WS-C; and May v. Hetzel, CA No. 15-230-

KD-M. Furthermore, seven of his 

actions have been dismissed pursuant to 

28 U.S.C. § 1915(g), namely, May v. 

Barber, CA No. 13-0429-CB-M; May v. 

Howard, CA No. 13-0557-CG-C; May v. 

Smith, CA No. 14-0171-CG-B; May v. 

Myers, CA No. 14-0271-KD-B; May v. 

Thomas, CA No. 13-0385-CB-M; May v. 

Stone, CA No. 15-0025-KD-B; and May v. 

Andrews, CA No. 15-30-KD-M.

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 AdbulAkabar 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 that had already 

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

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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. Complaint’s Allegations. (Doc. 1).

On April 17, 2015, the Court received plaintiff’s 

complaint signed on April 16, 2015. (Doc. 1 at 

7). At the beginning of the complaint, plaintiff 

informs the Court “that this is a refiled action” 

because Magistrate Judge Milling found that his 

prior action did not satisfy the exception to § 

1915(g). Plaintiff also advised that in another 

action, May v. Hetzel, CA No. 14-155-WS-M, 

Magistrate Judge Milling found that he met the 

exception. 

The Court determines that the unidentified action 

to which plaintiff refers in which he did not 

satisfy the exception to § 1915(g) is May v. 

Andrews, CA No. 15-30-KD-M (S.D. Ala. Apr. 24, 

2015). In this prior action, the defendants are 

the same as in the present action, and the prior 

allegations are similar to present allegations, 

particularly with the respect to the time frame. 

The present complaint adds a few non-pertinent 

flourishes in what appears to be an attempt to 

satisfy § 1915(g)’s exception.

Case 1:15-cv-00304-KD-M Document 3 Filed 07/20/15 Page 9 of 25
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In the present complaint, plaintiff names as 

defendants, Bennie Andrews, Health Services 

Administrator; Walter Myers, Warden; and Ms. 

McCea, Registered Nurse and Director of Nursing. 

(Id. at 5). The present complaint’s allegations 

are as follows. 

On October 14, 2014, plaintiff alleges that he 

saw Dr. Kouns due to frequent and severe 

headaches. (Id. at 8). 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.). 

Plaintiff contends that the report does not 

mention if his “shunt is working as it was 

designed to work.” (Id.). Plaintiff maintains 

that surgically creating a hole for drainage in 

his skull and brain is “abusive and degrading and 

[his] condition is evidence that he is deprived 

of contemporary standards of decency and a basic 

human need to safety and medical care, such 

inhumane conditions should not exist especially 

being exposed to an excessive risk of harm.” 

(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 “attempted 

to make up a clever trick by acknowledging that 

[his] [two] CT scans revealed his shunt to be 

working.” (Id.).

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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 9-10). FN2

FN2 This CT scan was included as a part 

of plaintiff’s allegations in May v. 

Stone, CA 15-25-KD-B (S.D. Ala. 

pending). In this prior action, 

plaintiff alleged that after he had a 

CT scan on February 27, 2014 for 

frequent and severe headaches, Dr. 

Stone met with him on March 5, 2015 to 

discuss the CT scan’s findings, which 

showed, among other things, “[n]o 

intracranial bleed or mass effect[.]” 

(Doc. 1 at 8). Later, on March 27, 

2014, plaintiff signed up to see the 

Dr. Stone again, which prompted Dr. 

Stone to write to plaintiff stating:

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).

Then, the CT scan of October 24, 2014, states 

that his “[v]entriculostomy appears to be in good 

position.” (Id.). Plaintiff asserts that 

neither of these two CT scans stated that his VP 

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“shunt is working as it was designed to work.” 

(Id. at 10). 

Plaintiff advised “Ms. McCea 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 goodbye. (Id.). Plaintiff alleges defendant McCea’s 

responses were “not reasonable” as the director 

of nursing and that she breached the standard of 

care, in that she should have had plaintiff 

“promp[t]ly examined by qualified medical 

personnel, prescribed and/or ordered the 

necessary treatment, given that treatment 

properly and then provided follow up attention as 

needed.” (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 11). 

Plaintiff contends that Defendant Andrews “made a 

decision . . . that requires[s] a specialist 

and/or technician in Neurosurgery attention.” 

(Id.). 

Furthermore, plaintiff identifies his specific 

claim against defendant Myers as occurring on 

October 30, 2014, when defendant Myers failed to 

install “any form of audit procedures to check on 

the performance of it[s] contract[o]r or medical 

services and allowed to exist[] the deprivation 

of needed medical services to [plaintiff],” 

“which has endangered [plaintiff’s] life, caused 

him unnecessary pains and made it very difficult 

for him to do basic things like sleep 

normal[ly].” (Id. at 5, 12). Defendant Myers is 

further alleged to have failed to “install any 

audit procedures to check on mental health 

performances [and medical services] . . .[,] 

allowed to exist the deprivation of mental health 

care [and adequate medical care], [and] neglected 

to implement any policies, procedures and/or 

standard operating procedures designed to assure 

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that [plaintiff] received[] mental health care 

[and adequate medical care at community 

standards].” (Id. at 11, 13). 

On October 30, 2014, plaintiff alleges that the 

specific claims against defendants Andrews and 

McCeas arose “when [each] displayed grossly 

deficient medical care by relying on an 

incomplete medical report to deny [plaintiff] 

medical treatment. The report [each] relied on 

to make [a] decision does not reveal that 

[plaintiff’s] VP shunt is working as it [was] 

designed to work.” (Id. at 5-6).

Near the end of the allegations plaintiff makes 

broad, conclusory statements without providing a 

connection to a specific defendant or a time 

period. In them, plaintiff states that 

defendants’ “obdurate refusals to ensure that 

[he] be provided with a course of treatment that 

was medically appropriate for a VP shunt 

malfunction was clearly wanton[n]ess due to the 

duration of [his] shunt malfunction has existed 

without any appropriate treatment prescribed.” 

(Id. at 12). He alleges that this total 

withdrawal of “appropriate medical care” 

constitutes “an imminent damage of serious 

physical injury[]” because his shunt has 

collapsed, does not refill, and can further 

deteriorate to the extent that it poses “an 

imminent danger of serious physical injury.” 

(Id.). Plaintiff also conclusorily complains of 

other medical problems for which he has not 

received care such as AVMs, a seizure disorder, 

prior stroke, anxiety issues, and depression. 

(Id.). For relief, plaintiff requests 

compensatory and punitive damages, attorney’s 

fees, and costs taxed to defendants. (Id. at 7).

III. Analysis.

Due to plaintiff having more than three actions 

or appeals dismissed as frivolous, malicious, or 

for failure to state a claim upon which relief 

can be granted, plaintiff’s allegations must 

satisfy § 1915(g)’s exception, which requires 

that plaintiff face an “imminent danger of 

Case 1:15-cv-00304-KD-M Document 3 Filed 07/20/15 Page 13 of 25
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serious physical injury” at the time of filing in 

order for this action to proceed. Additionally, 

an adequate nexus must exist between the 

“imminent danger of serious physical injury that 

is fairly traceable to a violation of law that 

the complaint asserts.” Pettus v. Morgenthau, 

554 F.3d 293, 296, 298 (2d Cir. 2009) (finding 

that the exception to § 1915(g) was not satisfied 

because the nexus was too attenuated between the 

defendants associated with plaintiff’s conviction 

and the alleged imminent danger of serious 

physical injury arising from his incarceration 

that was based on the denial of medication and 

being “surrounded by hostile, aggressive, violent 

inmates who beat, rob, assault, extort, and 

sexually abuse him”). Here, plaintiff’s 

allegations fail to demonstrate that he was in 

“imminent danger of serious physical injury” at 

the time he filed the complaint in April, 2015 in 

order to avail himself of the exception to 

§ 1915(g). Cf. Ashcroft v. Iqbal, 556 U.S. 662, 

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

(a claim must have facial plausibility in order 

for a claim to be stated as “threadbare recitals 

of the elements of a cause of action, supported 

by mere conclusory statements, do not suffice”).

Plaintiff’s complaint was filed between April 16, 

2015, when he signed the complaint, and April 17, 

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) 

(a prisoner’s “deliver[y of] a pleading to the 

prison authorities for forwarding to the court 

clerk” constitutes filing); see Garvey v. Vaughn, 

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

Houston to § 1983 actions filed by 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 

14, 2014 to December 19, 2014, not near the time 

of the complaint’s filing in April, 2015. (Doc. 

1 at 5-6, 11). The allegations do not show that 

a named defendant was involved in any of 

plaintiff’s claims at the time the complaint was 

filed in April, 2015. Cf. Zatler v. Wainwright, 

802 F.2d 397, 401 (11th Cir. 1986) (finding that 

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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). Nor do the allegations that are 

unconnected to a defendant indicate in a clear 

and plausible manner that at the time of filing 

that plaintiff was in imminent danger of a 

serious physical injury, as those allegations are 

vague and concluory. Cf. Iqbal, 556 U.S. at 678, 

129 S.Ct. at 1950 (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). At 

best, these unconnected allegations indicate 

there is a possibility his shunt can deteriorate 

and eventually pose “an imminent danger of 

serious physical injury.” (Id. at 12). 

The undersigned acknowledges that plaintiff’s 

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.) (recognizing plaintiff’s serious medical 

need), appeal dismissed as frivolous (11th Cir. 

June 26, 2014) (holding that the District Court 

properly granted summary judgment) (Doc. 94). FN3 

FN4

FN3 In May v. Patterson, CA No. 11-675-

KD-B, the medical defendants furnished 

with their Special Report a copy of 

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 

Case 1:15-cv-00304-KD-M Document 3 Filed 07/20/15 Page 15 of 25
16

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 xrays 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 

Case 1:15-cv-00304-KD-M Document 3 Filed 07/20/15 Page 16 of 25
17

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 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).

FN 4 The Court takes judicial notice of 

its records. Nguyen v. United States, 

556 F.3d 1244, 1259 n.7 (11th Cir. 

2009). 

In affirming the district court’s dismissal of 

plaintiff’s action, the Eleventh Circuit ruled 

that plaintiff 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. at 7). It 

further advised plaintiff that “[w]hen an inmate 

receives adequate medical care, but desires 

different modes of treatment, the care provided 

Case 1:15-cv-00304-KD-M Document 3 Filed 07/20/15 Page 17 of 25
18

does not amount to deliberate indifference.” 

(Id.).

In this action, plaintiff put the Court on notice 

that the present action is a re-filing of his 

prior action that was barred by § 1915(g). 

Apparently, plaintiff did not understand the 

prior case’s dismissal pursuant to § 1915(g) 

because his additional allegations in the present 

complaint do not address the problem with his 

prior action, that is, he must show that at the 

time of the complaint’s filing that he was 

“imminent danger of a serious physical injury” 

and that he make this showing with specific fact 

allegations. Ball, supra, CA No. 06-0496-CG-M, 

2007 WL 484547, at *1. With plaintiff’s having 

failed to make the required showing, 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 in April, 2015 

and therefore has not satisfied § 1915(g)’s 

exception. 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. 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).

May v. Andrews, CA No. 15-211-KD-N, 2015 U.S. Dist. LEXIS 

71442 (S.D. Ala. May 7, 2015), objected to and dismissed 

without prejudice by, 2015 U.S. Dist. LEXIS 71439 (June 2, 

Case 1:15-cv-00304-KD-M Document 3 Filed 07/20/15 Page 18 of 25
19

2015).

Likewise, the undersigned finds that Plaintiff did not 

show in the present Complaint that he was “under imminent 

danger of serious physical injury” at the time of the 

present Complaint’s filing. That is, the allegations 

against Defendants occurred from October, 2014, to 

December, 2014, in both the prior and present actions, 

which was at least half a year before the filing of this 

action in June, 2015. Thus, Plaintiff did not make the 

required showing that he was “under imminent danger of 

serious physical injury” at the time of the present 

Complaint’s filing in order for his Complaint to come 

within the exception to § 1915(g). 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).

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, 

Case 1:15-cv-00304-KD-M Document 3 Filed 07/20/15 Page 19 of 25
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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. 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).

Furthermore, the Court notes that since the beginning 

of this calendar year, Plaintiff has filed the following 

actions in this Court containing claims arising from 

medical issues with his head, which are in addition to his 

ten prior actions based on medical issues with his head, 

(which are listed in footnote 1 of the prior action’s 

Report and Recommendation, see p.8, supra): May v. Stone,

CA No. 15-25-KD-B, 2015 WL 3459035 (S.D. Ala. June 1, 

2015), notice of appeal filed (June 11, 2015), was filed 

near January 16, 2015; May v. Andrews, CA No. 15-30-KD-M 

(S.D. Ala. April 24, 2015)(§ 1915(g) dismissal); May v. 

Barber, CA No. 15-201-WS-C (pending); May v. Myers, CA No. 

15-211-KD-M (S.D. Ala. June 2, 2015)(§ 1915(g) dismissal);

May v. Hetzel, CA No. 15-230-KD-M (S.D. Ala. July 15, 

Case 1:15-cv-00304-KD-M Document 3 Filed 07/20/15 Page 20 of 25
21

2015)(§ 1915(g) dismissal); May v. Myers, CA No. 15-304-KDM (§ 1915(g) dismissal); the present action; and May v. 

Myers, CA No. 15-347-KD-C (pending – no ifp filed or filing 

fee paid). Additionally, on March 10, 2015, the Eleventh 

Circuit Court of Appeals found in an earlier action that 

Plaintiff’s appeal was not frivolous and granted Plaintiff 

in forma pauperis status to proceed with his appeal in May 

v. Hetzel, CA No. 14-155-WS-M, 2014 WL 5072693, adopted

(S.D. Ala. Oct. 7, 2014), appeal filed, (Nov. 4, 2014); 

Plaintiff’s underlying action concerns the treatment he 

received for medical issues with his head.

Plaintiff’s repeated filing of claims based on medical 

issues with his head and failure to heed the information 

contained in the Court’s Report and Recommendations with 

respect to an appropriate time for filing an action that 

comes within § 1915(g)’s exception against an appropriate 

defendant is causing the Court to consider taking 

additional measures to curb Plaintiff’s litigation activity 

based on claims concerning his head’s medical issues. 

These measures would be in addition to the bar put in place 

by § 1915(g). See Procup v. Strickland, 792 F.2d 1069, 

1072-73 (11th Cir. 1986) (describing sanctions, in a prePLRA case, that other courts have employed through their 

inherent powers when confronted with an inmate who filed 

Case 1:15-cv-00304-KD-M Document 3 Filed 07/20/15 Page 21 of 25
22

repetitious claims, such limiting the number of IFP filings 

to six per year); Smith v. Florida Dep’t of Corrs., 369 F. 

App’x 36, 40 (11th Cir. 2010) (approving an injunction that 

mirrored the scope of § 1915(g) so as not to foreclose 

imminent danger claims)4; Miller v. Donald, 541 F.3d 1091, 

1099 (11th Cir. 2008) (noting, in its rejection of a “§ 

1915(g)-plus” sanction, that “[t]he district courts will 

continue to develop mechanisms that protect their own 

jurisdictions consistent with their inherent power and 

limitations, and § 1915(g)’s relatively narrow rule-andexception pairing neither subtracts from nor adds to 

them”); Henderson v. Morales, No. CV 312-092, 2012 WL 

5473057, at *3 (N.D. Ga. Oct. 10, 2012)(imposing the 

sanction that the inmate submit a sworn statement stating 

that he is in imminent danger, which will subject him to 

criminal prosecution should he perjure himself, after the 

inmate was previously warned that his tactics to circumvent 

§ 1915(g) were an abuse of process and a waste of judicial 

resources which may subject him to sanctions).

Considering that Plaintiff’s appeal is before the 

Eleventh Circuit in May v. Hetzel, CA No. 14-155-WS-M, 

 4 “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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supra, a possibility exists that the Eleventh Circuit may 

address matters related to the medical issues with

Plaintiff’s head. In light of this pending appeal, this 

Court looks dimly on Plaintiff’s repetitive filing of 

complaints concerning medical issues with his head, 

particularly those five actions filed after in forma 

pauperis status on appeal was granted on March 10, 2015, 

namely, CA No. 15-201—WS-C, CA No. 15-211-KD-N, CA No. 15-

230-KD-M, CA No. 15-304-KD-M, and CA No. 15-347-KD-C. 

Furthermore, the Court observes that Plaintiff’s medical 

issues with his head were previously before the Eleventh 

Circuit in May v. Patterson, CA No. 11-675-KD-B, 2014 WL 

5072693, adopted (S.D. Ala. Oct. 7, 2014) (granting 

defendants’ summary judgment), appeal denied (11th Cir. 

June 26, 2014) (finding in an opinion the appeal was 

frivolous). 

Plaintiff is WARNED that his continued filing of 

repetitive in forma pauperis actions involving his head’s 

medical issues that do not satisfy § 1915(g)’s exception 

may result in the imposition of sanctions because he is 

abusing the Court and using its spare resources, which 

deprives the Court from addressing other actions. See

Malautea v. Suzuki Motor Co., 987 F.2d 1536 (11th Cir. 

1993) (imposing sanctions after warnings were issued), 

Case 1:15-cv-00304-KD-M Document 3 Filed 07/20/15 Page 23 of 25
24 

cert. denied, 510 U.S. 863 (1993); Moon v. Newsome, 863 

F.2d 835 (11th Cir.) (same), cert. denied, 493 U.S. 863 

(1989); Howard v. Langston, 567 F. App’x 289 (5th Cir. 

2014) (imposing monetary sanctions after previously warning 

the § 1915(g)-barred prisoner against filing frivolous 

matters and advising him to review any pending appeals and 

dismiss those that are frivolous); Smith v. Warden, Hardee 

Corr. Inst., 597 F. App’x 1027, 1031-32 (11th Cir. 2015) 

(holding that “[a] district court may sanction a party for 

filing a pleading that lacks a reasonable factual basis; 

that is predicated on a frivolous legal theory; or that is 

submitted in bad faith for an improper purpose” and that 

the prisoner, “who is a frequent filer, should bear his own 

costs to curtail his abusive litigation”). The Clerk is 

DIRECTED to reflect prominently on the docket sheet in this 

action that Plaintiff has been warned about filing 

repetitive in forma pauperis complaints about medical 

issues with his head that do not meet § 1915(g)’s exception.

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 

Case 1:15-cv-00304-KD-M Document 3 Filed 07/20/15 Page 24 of 25
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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 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 20th day of July, 2015. 

s/BERT W. MILLING, JR.

UNITED STATES MAGISTRATE JUDGE

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