Garrett v. Marshall

• Court: District Court, N.D. Alabama
• Decided: March 15, 2024
• Docket: 1:24-cv-00179
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA EASTERN DIVISION LARRY DEAN GARRETT, JR., ) ) Plaintiff, ) ) v. ) Case No. 1:24-cv-00179-RDP-SGC ) ATTORNEY GENERAL STEVE ) MARSHALL, et al., ) ) Defendants. )

MEMORANDUM OPINION This is an action pursuant to 42 U.S.C. § 1983 filed by Plaintiff Larry Dean Garrett, Jr., who is proceeding pro se. (Doc. # 1). On February 22, 2024, the Magistrate Judge entered a Report and Recommendation recommending the court dismiss this action pursuant to the three strikes provision of 28 U.S.C. § 1915(g). (Doc. # 3). Plaintiff was advised of his right to file written objections to the Report and Recommendation within fourteen days, but the court has not received any objections or other response. The Magistrate Judge concluded that this action should be dismissed under the Prison Litigation Reform Act because (1) Plaintiff cannot proceed in forma pauperis because he has, on at least three prior occasions, brought a federal civil action that was dismissed for failure to state a claim upon which relief can be granted (commonly known as a “strike”),1 (2) he did not pay the filing and administrative fees when he filed this complaint, and (3) there is no indication he is in imminent danger of serious physical injury. The Eleventh Circuit has held that when a prisoner with three strikes files a complaint without paying the filing fee, the district court should dismiss

1 See Garrett v. Pulliam, No. 18-1160-AKK-JEO (N.D. Ala. July 30, 2018); Garrett v. Shelby Cty. Jail, No. 17-1081-AKK-JEO (N.D. Ala. Jan. 10, 2018); Garrett v. Randolph Cty. Sheriff’s Dep’t., No. 16-990 (M.D. Ala. Mar. 23, 2017). the complaint without prejudice. Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002). “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.” The only exception to this rule arises when “the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). Plaintiff has accrued three strikes, he did not pay the filing fee at the time he filed his complaint, and there is no indication he is in imminent danger of serious injury. Accordingly, this action is due to be dismissed. After careful consideration of the record in this case and the Magistrate Judge’s Report, the court ADOPTS the Report and ACCEPTS the recommendation. (Doc. #3). Consistent with that recommendation, Plaintiff’s application to proceed in forma pauperis is due to be denied (Doc. # 2), and this action is due to be dismissed without prejudice under 28 U.S.C. § 1915(g). A separate order will be entered. DONE and ORDERED this March 15, 2024.

UNITED STATES DISTRICT JUDGE