IN THE UNITED STATES DISTRICT COURT FOR THE 

 SOUTHERN DISTRICT OF ALABAMA 

 NORTHERN DIVISION 

DONNIE W. LEE, AIS # 145193, : 

Plaintiff, : 

vs. : CIVIL ACTION 09-0682-CG-C 

NURSE BLACKMON, et al., : 

Defendants. : 

 REPORT AND RECOMMENDATION

This action, filed under 42 U.S.C. ' 1983 by an Alabama prison inmate 

proceeding pro se and seeking leave to proceed in forma pauperis,

1

 has been referred to 

the undersigned pursuant to 28 U.S.C. ' 636(b)(1)(B) and Local Rule 72.2(c)(4) for 

appropriate action. It is the undersigned=s recommendation that this action be dismissed 

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

I. Application of 28 U.S.C. § 1915(g). 

 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 

 1

 The Court, by separate order, is revoking its prior grant of plaintiff=s motion to proceed 

without prepayment of fees in light of the Court=s discovery of his prior actions and appeals that 

were dismissed because they were frivolous, malicious, or failed to state a claim upon which 

relief can be granted. 

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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. 

28 U.S.C. ' 1915(g).

A. Prior Actions. 

 In the present action, the Court discovered, in its review of the dockets of the 

United States District Courts for Alabama and the Eleventh Circuit Court of Appeals, that 

this action was filed by an inmate who previously had at least three actions or appeals 

dismissed because they were frivolous, malicious, or failed to state a claim upon which 

relief can be granted, namely, Lee v. Dean, et al., CA 95-0861-CB-M (S.D. Ala. Jan. 10, 

1996) (frivolous); Lee v. Jones, et al., CA 96-0907-MHT-VPM (M.D. Ala. Oct. 17, 

1997), appeal dismissed as frivolous, (11th Cir. Mar. 23, 1998); Lee v. Clinton, et al., CA 

97-0088-WHA-VPM (M.D. Ala. Mar. 24, 1999), appeal dismissed as frivolous (11th Cir. 

Nov. 5, 2009); Lee v. Baldwin County, Ala., et al., CA 97-0559-RV-S (S.D. Ala. Aug. 

12, 1997) (frivolous); Lee v. Haley, et al., CA 9700144-MHT-VPM (M.D. Ala. June 17, 

1998).2

 Thus, plaintiff comes within the purview of 28 U.S.C. ' 1915(g), which 

precludes him from filing the instant action in forma pauperis unless he is Aunder 

imminent danger of serious physical injury.@ 

 2

In addition to these actions, plaintiff has filed other actions that are inaccessible through 

the electronic docket. Some of these earlier actions may also qualify as a strike in that the lead 

defendant in three of the actions is either a local private attorney, a local judge, or a local 

prosecutor. See Lee v. Sutley, CA 87-0219-M (S.D. Ala. July 7, 1989); Lee v. Wilters, CA 87-

0412-C (S.D. Ala. Oct. 5, 1987); and Lee v. Whetstone, CA 88-0723-M (S.D. Ala. Feb. 28, 

1989). Inasmuch as plaintiff has more that three actions and appeals that qualify him for 

treatment under § 1915(g), the Court did not examine further these earlier actions. 

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 B. Exception to § 1915(g). 

 1. Original Complaint (Doc. 1). 

After reviewing the complaint (Doc. 1) and amended complaint (Doc. 7) to 

determine if plaintiff satisfied the exception to 28 U.S.C. § 1915(g), that is, he was 

Aunder imminent danger of serious physical injury@at the time of filing, the Court 

concludes that plaintiff does not satisfy this exception. In the original complaint against 

defendants Blackmon and Mullins, bearing a date of October 4, 2009 (Doc. 1 at 1), 

plaintiff complains of stomach problems that he had suffered for three weeks. (Id.). The 

stomach pain had caused him to curl into a ball, and his chest and esophagus had felt raw. 

(Id. at 2). He had a hacking cough which was occasionally productive. (Id.). Defendant 

Blackmon, the head nurse at Perry County Correctional Center (“PCCC”),3

 would not 

give him medication for his pain or examine him, and he was not allowed to see a doctor. 

(Id.). Plaintiff sent requests to the warden for help on September 27, 2009 and September 

29, 2009. (Id.). 

Plaintiff was then confronted by defendant Mullins, the assistant warden, who 

accused plaintiff of suing him when plaintiff filed his requests. (Id. at 3). This 

confrontation occurred in the law library where plaintiff was a law clerk. (Id.). Plaintiff 

explained that he had merely filed requests as he was instructed to do. (Id.). Defendant 

Mullins ranted that plaintiff had used the typewriter in the library to sue him. (Id.). He 

 3

 Plaintiff is no longer at PCCC. The Court discovered this after the Court’s mail to 

plaintiff was returned to the Court. Plaintiff had been transferred to Bibb County Correctional 

Center, where he is presently incarcerated. (Doc. 6, Order dated March 31, 2010). 

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then fired plaintiff and ordered plaintiff to get out and take his possessions and to use the 

law library only one hour a day and only for his personal use. (Id.). 

Plaintiff states that he would like medical attention and he “needs it soon.” (Id. at 

5). Plaintiff would like to go home or to a federal prison in Louisiana so he could get 

medical attention. (Id.). 

Attached to the complaint is plaintiff’s September 27, 2009 request indicating that 

defendant Blackmon would be putting him on the list to see a doctor and that she denied 

him Zantac because there was no doctor’s prescription. (Id. at 6-7). Plaintiff was noted 

by defendant Blackmon as “walking upright without difficulty, ha[ving] no vomiting and 

[ ] eating regular meals.” (Id.). 

2. Amended Complaint. (Doc. 7). 

In the amended complaint, which plaintiff was ordered to file because the original 

complaint was not on the court’s complaint form, he alleged a separate, additional claim 

regarding his eyes and their need for treatment and provided more information on his 

stomach claim. And plaintiff added Louisiana Correctional Services (“LCS”), the owner 

of PCCC, as a defendant. (Id. at 15). The Court is considering the amended complaint in 

light of Brown v. Johnson, 387 F.3d 1344, 1348-52 (11th Cir. 2004), which observed that 

the PLRA did not disallow the amending of a complaint under Rule 15(a), but in the 

§ 1915(g) situation the amendment would be scrutinized under § 1915(g) and then, if 

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necessary, screened under 28 U.S.C. § 1915(e)(2)(B)).4 The Court received the amended 

complaint on May 5, 2010. 

 a. Stomach Claim. 

Regarding the claims based on stomach complaints, the amended complaint’s 

additional information reflects that in mid-September Nurse Lowery told plaintiff to quit 

taking Naproxen, which he was taking for back pain, and prescribed Zantac for fourteen 

days. (Id. at 11). She placed plaintiff on the list to see the doctor, but defendant 

Blackmon took him off of the list. (Id.). Plaintiff states that he saw the doctor on 

October 4, 2009, but he does not indicate what the doctor’s findings were or the proposed 

treatment. (Id. at 12). 

 b. Eye Claim. 

The other medical claim that plaintiff alleges in the amended complaint is for the 

lack of treatment for his eyes. In March, 2009, plaintiff was taken to an eye doctor in 

Selma for an infection in his eyes. (Doc. 7 at 8). In treating plaintiff the doctor 

determined that plaintiff had a cataract on each eye but due to the infection, was unable to 

completely examine plaintiff’s eyes. (Id.). Plaintiff was recommended for surgery and 

was given eye medication. (Id.). The guards gave this information to medical personnel 

 4

 In Brown the amended complaint was filed after the magistrate judge had entered a 

recommendation dismissing under § 1915(g) the complaint based on plaintiff’s claim for the 

denial of prescribed medication for HIV and hepatitis. 387 F.3d at 1347. Plaintiff objected and 

filed an amended complaint that supplemented his complaint’s allegations. Id. Thereafter the 

district court denied the amended complaint and dismissed the action pursuant to § 1915(g). Id.

The Eleventh Circuit reversed and remanded the action finding that it was not precluded under 

§ 1915(g) and § 1915(e)(2)(B). Id. at 1351-52. 

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at PCCC, but plaintiff never heard anything about it. (Id. at 9). In June, 2009, plaintiff 

returned to the doctor so his eyes could be examined. (Id.). The doctor recommended 

surgery to remove cataracts and glasses, allowing plaintiff to pick out his frames. (Id.). 

This information was conveyed to medical personnel at PCCC. (Id.). After three weeks, 

plaintiff checked with defendant Blackmon to see if his glasses were ready. (Id. at 10). 

She told him that it would be three to four months without checking on them even though 

plaintiff had been told his glasses would be ready in two weeks. (Id.). From July, 2009 

to December, 2009, plaintiff experienced his eyesight worsening, black spots in his 

vision, discharge from his eyes, discomfort, and pain. (Id.). During this time no mention 

was made to plaintiff of the recommended surgery even though cataracts may cause 

blindness. (Id.). 

c. New Defendant LCS. 

 In regard to defendant LCS, plaintiff claims that its hiring of defendant 

Blackmon, whose license had been previously revoked or suspended, has caused him to 

suffer unnecessarily. (Id. at 15). And defendant LCS was deliberately indifferent when it 

placed defendant Mullins in the position of assistant warden even though he had no prior 

experience. (Id.). Defendant LCS retaliated against plaintiff when defendant Mullins 

retaliated against plaintiff causing him to lose his paying job and limiting his library time. 

(Id. at 16). Due these actions by defendant LCS, plaintiff has suffered partial loss of his 

vision, and pain in his eyes and severe stomach problems from mid-September, 2009 

through the first week in October, 2009. (Id. at 15). For relief, plaintiff seeks 

compensatory and punitive damages and a declaratory judgment. (Id.). 

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C. Analysis. 

The date that plaintiff drafted his original complaint is the same date that he was 

seen by the doctor – October 4, 2009. Being seen by the doctor undercuts any showing 

that plaintiff could make that he was in imminent danger of serious physical injury on 

October 4, 2009 in regard to his stomach complaints. And plaintiff indicates in a general 

manner in the amended complaint that he suffered stomach pain only through the first 

week of October. (Id. at 15). Moreover, there is an absence of specific allegations 

regarding his stomach condition on October 4, 2009 and thereafter. Whereas, the burden 

is on plaintiff to provide “specific fact allegations of ongoing 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.).5

 These reasons 

prevent plaintiff from meeting his burden that he faced imminent danger of serious 

physical injury on October 4, 2009 or a later date on which plaintiff may contend that he 

actually filed his complaint.6

 Furthermore, the allegations directed to defendant 

Blackmon are based on her conduct prior to and on September 28, 2009, when she 

 5 AUnpublished opinions are not considered binding precedent, but they may be cited as 

persuasive authority.@ 11TH CIR. R. 36-2 (2005). 

6

 The original complaint’s envelope does not bear a date in its postmark. (Doc. 1). And 

plaintiff did not file a motion to proceed without prepayment of fees when the filed his original 

complaint which may have contained information relevant to the filing date. See Houston v. 

Lack, 487 U.S. 266, 276, 108 S.Ct. 2379, 2385, 101 L.Ed.2d 245 (1988) (a prisoner’s pleading is 

deemed filed when the prisoner “deliver[s] it to the prison authorities for forwarding to the court 

clerk.”). 

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responded to his request. And the claims against defendant Mullins are not directly 

connected to a physical injury, and they occurred before October 4, 2009. 

In the amended complaint, received by the Court on May 5, 2010, plaintiff raises 

his eye claim and adds defendant LCS. (Doc. 7). The eye claim arises from a nucleus of 

facts other than those facts on which his stomach claim is based and for which plaintiff 

should have filed a separate action. (Doc. 7, at 1, C (“It is necessary to file a separate 

complaint form for each claim unless the claims are related to the same incident or 

issue.”)). Notwithstanding, at the time he filed his eye claim, there are no allegations 

showing that in or near May, 2010 that he was in imminent danger of serious physical 

injury to his eyes from defendant Blackmon. In regard to defendant LCS, no indication is 

given that when the amended complaint was filed in or near May, 2010 that plaintiff was 

under imminent danger of serious physical injury from LCS. The finding of lack of 

imminent harm of serious physical injury from defendant Blackmon concerning his eyes 

and from defendant LCS is supported by the fact that plaintiff was no longer at PCCC in 

or near May, 2010. See Doc. 6 (Order dated March 31, 2010 noting plaintiff’s 

incarceration at Bibb Correctional Center). 

Past harm does not satisfy ' 1915(g)=s exception that a plaintiff be Aunder 

imminent danger of serious physical injury.@ Brown v. Johnson, 387 F.3d 1344, 1349 

(11th Cir. 2004) (Aa 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) (Aa prisoner=s allegation that he faced imminent danger sometime 

in the past is . . . insufficient@); see also Adbul-Akabar v. McKelvie, 239 F.3d 307, 315 

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(3d Cir.) (ABy 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). Thus, in order to satisfy the 

exception to ' 1915(g), a Aplaintiff 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, 2007 WL 484547, at *1. Plaintiff has not done 

this. 

Furthermore, inasmuch as the complained of conduct is for past actions, plaintiff 

failed to show that he was Aunder imminent danger of serious physical injury@ when he 

filed the original complaint and his amended complaint. Thus, his action is precluded 

from coming within ' 1915(g)=s exception. 

II. Conclusion. 

Accordingly, it is recommended that this action be dismissed without prejudice 

pursuant to 28 U.S.C. ' 1915(g). 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). 

The instructions that follow the undersigned=s signature contain important 

information regarding objections to the Report and Recommendation of the Magistrate 

 

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Judge. 

DONE this 2nd day of August, 2010. 

 s/WILLIAM E. CASSADY 

 UNITED STATES MAGISTRATE JUDGE 

 

 

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MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND 

 RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND 

 FINDINGS CONCERNING NEED FOR TRANSCRIPT

l. Objection. 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. Failure to do so will bar a de novo determination by the district judge of 

anything in the recommendation and will bar an attack, on appeal, of the factual findings of the 

Magistrate Judge. See 28 U.S.C. ' 636(b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 

1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982) (en banc). The procedure for 

challenging the findings and recommendations of the Magistrate Judge is set out in more detail 

in SD ALA LR 72.4 (June 1, 1997), which provides that: 

A party may object to a recommendation entered by a magistrate judge in a 

dispositive matter, that is, a matter excepted by 28 U.S.C. ' 636(b)(1)(A), by 

filing a >Statement of Objection to Magistrate Judge=s Recommendation= within 

ten days7 after being served with a copy of the recommendation, unless a different 

time is established by order. The statement of objection shall specify those 

portions of the recommendation to which objection is made and the basis for the 

objection. The objecting party shall submit to the district judge, at the time of 

filing the objection, a brief setting forth the party=s arguments that the magistrate 

judge=s recommendation should be reviewed de novo and a different disposition 

made. It is insufficient to submit only a copy of the original brief submitted to the 

magistrate judge, although a copy of the original brief may be submitted or 

referred to and incorporated into the brief in support of the objection. Failure to 

submit a brief in support of the objection may be deemed an abandonment of the 

objection. 

A magistrate judge's recommendation cannot be appealed to a Court of Appeals; only the 

district judge's order or judgment can be appealed. 

2. Transcript (applicable Where Proceedings Tape Recorded). Pursuant to 28 U.S.C. '

1915 and FED.R.CIV.P. 72(b), the Magistrate Judge finds that the tapes and original records in 

this case are adequate for purposes of review. Any party planning to object to this 

recommendation, but unable to pay the fee for a transcript, is advised that a judicial 

determination that transcription is necessary is required before the United States will pay the cost 

of the transcript. 

 

 7

 Effective December 1, 2009, the time for filing written objections was extended to A14 

days after being served with a copy of the recommended disposition[.]@ Fed.R.Civ.P. 72(b)(2). 

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