Smith v. McMillian

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
HENRY CLAY SMITH, )
)
Plaintiff, )
)
vs. ) CIVIL ACTION: 24-00421-JB-MU
)
DONALD MCMILLIAN, )
)
Defendant. )
REPORT AND RECOMMENDATION
Plaintiff Henry Clay Smith, a prisoner at Donaldson Correctional Facility, filed an
action under 42 U.S.C. § 1983. (Doc. 1). He also filed an incomplete motion to proceed
without prepayment of fees, or in forma pauperis. (Doc. 2). This action, which was
transferred from the United States District Court for the Northern District of Alabama
(Docs. 3-5), is before the undersigned Magistrate Judge for appropriate action pursuant
to 28 U.S.C. § 636(b)(1) and S.D. Ala. GenLR 72(a)(2)(R). Upon review of the complaint
and Plaintiff’s prior litigation history, it is RECOMMENDED that this Court DENY
Plaintiff’s Motion to Proceed in forma pauperis and DISMISS this action without
prejudice pursuant to 28 U.S.C. § 1915(g), because Plaintiff is barred from proceeding
in forma pauperis and did not pay the filing and administrative fee when he filed this
action.
The Prison Litigation Reform Act (“PLRA”), which was enacted “to curtail abusive
prisoner litigation,” Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002), includes
restrictions on prisoners filing certain civil rights actions in federal courts. Relevant here,
the “three-strikes” provision set forth in § 1915(g) states:
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In no event shall a prisoner bring a civil action or appeal a judgment in a
civil action or proceeding under this section if the prisoner has, on 3 or more
prior occasions, while incarcerated or detained in any 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). When the three-strikes provision is applicable, the Eleventh Circuit
has established “that the proper procedure is for the district court to dismiss the
complaint without prejudice when it denies the prisoner leave to proceed in forma
pauperis pursuant to the three strikes provision of § 1915(g).” Dupree, 284 F.3d at
1236. Furthermore, “the prisoner cannot simply pay the filing fee after being denied in
forma pauperis status. He must pay the filing fee at the time he initiates the suit.” Id. The
only exception to this three-strike rule is when Plaintiff has pled that he “is in imminent
danger of serious physical injury.” 28 U.S.C. § 1915(g).
Review of federal court records reveals that Plaintiff has filed at least three
federal court cases which courts have dismissed as frivolous or for failing to state a
claim upon which relief may be granted under § 1915:
Smith v. Haddock, CA No. 5:2011-03429-RDP-PWG (N.D. Ala. Jan. 5, 2012)
(failure to state a claim), appeal No. 12-10468-D (11th Cir. July 23, 2012)
(three-judge court found appeal frivolous), and Smith v. Haddock, CA No.
4:2015cv01601-MHH-HGD (failure to state a claim) (N.D. Ala. May 31,
2016), appeal No. 16-13668-F (11th Cir. June 12, 2017) (three-judge court
found appeal frivolous).
Smith v. McMillian, No. CV 21-0383-KD-MU, 2021 WL 5067459, at *1 (S.D. Ala. Oct.
13, 2021), report and recommendation adopted, No 1:21-00383-KD-MU, 2021 WL
5068528 (S.D. Ala. Nov. 1, 2021). Indeed, Plaintiff has previously had at least three
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separate federal court cases in Alabama dismissed pursuant to the three-strike
provision, including:
Smith v. Meigs, CA No. 5:20-cv-00980-LSC-HNJ (N.D. Ala. Aug. 7, 2020);
Smith v. McMillian, No. CV 21-0383-KD-MU, 2021 WL 5067459 (S.D. Ala.
Nov. 1, 2021); Smith v. Windom, CA No. 5:23-cv-01733-AMN-HNJ (N.D.
Ala. Mar. 5, 2024).
Because Plaintiff has previously had three-strikes under § 1915(g) and did not
pay the filing fee when filing this action, this case cannot proceed unless he can show
he “is in imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).
In determining whether a prisoner has proved imminent danger of serious
physical injury, this Court looks to the complaint, construing it liberally and
accepting its allegations as true. In so doing, the Court considers whether
[the prisoner's] complaint, as a whole, alleges imminent danger of serious
physical injury, not whether each specific physical condition or affliction
alleged alone would be sufficient. General assertions, however, are
insufficient to invoke the exception to § 1915(g) absent specific fact
allegations of ongoing serious physical injury, or of a pattern of misconduct
evidencing the likelihood of imminent serious physical injury.
Daker v. Ward, 999 F.3d 1300, 1311 (11th Cir. 2021), cert. denied, 142 S. Ct. 2716
(2022) (internal quotations and citations omitted). 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, No. 06-0496-CG-M, 2007 WL 484547, at *1 (S.D. Ala. 2007)
(unpublished).
In his complaint, Plaintiff names Dallas County, Alabama Circuit Court Judge
Donald McMillian as a defendant and alleges that he changed or altered documents
regarding Plaintiff’s Rule 32 petition. (Doc. 1 at 5-6). According to Plaintiff, on November
18, 2020, he filed a Rule 32 petition in two state court cases, CC-1980-186.64 and CC-
1985-21.64. On December 21, 2020, Judge McMillian “granted Plaintiff disposition” of
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these cases, but allegedly “changed the document[s]” on March 16, 2021. (Id.). Plaintiff
further claims that, on May 28, 2021, the Alabama Court of Criminal Appeals reversed
and remanded Judge McMillian’s Rule 32 dismissal “with prejudice,” stating the dismissal
should have been “without prejudice.” (Id. at 6). Plaintiff claims his “sentence is illegal”
and that Judge McMillian’s actions were performed outside his judicial capacity. (Id. at
8). Plaintiff argues that because Judge McMillian lacked jurisdiction to change or alter
the order(s) after 30-days, his sentences should be vacated or reversed. (Id.).
The complaint allegations relate solely to Plaintiff’s sentence and prior court
actions. Plaintiff has neither alleged nor demonstrated that he faces imminent danger of
serious physical injury or harm. (See Doc. 1); see Medberry v. Butler, 185 F.3d 1189,
1193 (11th Cir. 1999) (holding that a prisoner who has filed three or more frivolous
lawsuits or appeals and seeks to proceed in forma pauperis must present facts
sufficient to demonstrate “imminent danger” to circumvent application of the “three
strikes” provision of 28 U.S.C. § 1915(g)). Accordingly, he has failed to show that he “is
in imminent danger of serious physical injury.”
For these reasons, the undersigned RECOMMENDS that this Court DENY
Plaintiff’s Motion to Proceed without Prepayment of Fees (Doc. 2) and further
RECOMMENDS that this action be DISMISSED without prejudice pursuant to 28
U.S.C. § 1915(g) because Plaintiff did not pay the filing and administrative fees of $405
when he filed his complaint.
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
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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. Gen.LR 72(c). 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. 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 3rd day of December, 2024.
/s/ P. BRADLEY MURRAY.
UNITED STATES MAGISTRATE JUDGE
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