Johnson v. Nick Smith ( 2022 )

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA JASPER DIVISION ANTHONY LYNN JOHNSON, ) ) Plaintiff, ) ) v. ) Case No. 6:22-cv-01263-MHH-SGC ) NICK SMITH, et al., ) ) Defendants. ) MEMORANDUM OPINION AND ORDER On November 15, 2022, the magistrate judge entered a report in which she recommended that the Court dismiss this action pursuant to the three strikes provision of 28 U.S.C. § 1915(g). (Doc. 6). Mr. Johnson has objected to the report and recommendation, stating that when he filed this action, he did not understand that he was required to pay the filing fee. Mr. Johnson has asked for time to pay the fee. (Doc. 10).1 1 Since the entry of the report and recommendation, Mr. Johnson has filed three documents other than his objection. First, Mr. Johnson has asked the Court to appoint counsel to represent him. (Docs. 7, 9). Second, Mr. Johnson has filed a document in which he reports that officials at the Walker County Jail and at the Talladega County Jail conspired to confiscate his property including all papers relating to this lawsuit. (Doc. 8). Mr. Johnson has asked the Court to investigate his allegations and send him a new form for § 1983 actions. Because the Court must dismiss this action for failure to pay the filing fee, these issues are moot. As discussed below, the Court will direct the Clerk to send Mr. Johnson a new § 1983 form complaint. . 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 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.” Dupree, 284 F.3d at 1236 (italics in Dupree). The only exception to this rule arises when “the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). As the magistrate judge explained, Mr. Johnson has not alleged facts that qualify for this exception. Accordingly, the Court overrules Mr. Johnson’s objection, adopts the magistrate judge’s report, and accepts her recommendation. The Court denies Mr. Johnson’s application to proceed in forma pauperis and dismisses this action without prejudice under 28 U.S.C. § 1915(g). The Court denies as moot Mr. Johnson’s requests for appointment of counsel and for an investigation into the alleged confiscation of his personal property. By separate order, the Court will close this action. If Mr. Johnson wishes to pursue his claims, he should file a new complaint, and he should submit a filing fee with his complaint. In his complaint, Mr. Johnson should state all facts that he contends support his claim(s) against each defendant he names in his complaint. The Clerk shall please SEND Mr. Johnson a copy of this order and two copies a § 1983 complaint form. DONE and ORDERED this December 15, 2022. oe DELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE