Johnson v. Hall ( 2022 )

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA WESTERN DIVISION ANTHONY LYNN JOHNSON, ) ) Plaintiff, ) ) v. ) Case No. 7:22-cv-00864-AMM-SGC ) TODD HALL, et al., ) ) Defendants. ) MEMORANDUM OPINION AND ORDER On October 17, 2022, the magistrate judge entered a report recommending the court dismiss this action, filed by plaintiff Anthony Lynn Johnson, pursuant to the three strikes provision of 28 U.S.C. § 1915(g). Doc. 14. The report and recommendation was initially returned to the court as undeliverable, after which Mr. Johnson updated his address with the court. Docs. 17–18. Accordingly, the court resent the report and recommendation to Mr. Johnson on November 10, 2022. Doc. 19. Mr. Johnson has since filed four documents. First, Mr. Johnson requests this court appoint counsel to represent him. Doc. 20. Second, he alleges that officials at the Walker County Jail and Talladega County Jail conspired to purposely confiscate his property, including all papers relating to this lawsuit. Doc. 21. He requests the court investigate his allegations and send him a new form for § 1983 actions. Third, Mr. Johnson objected to the report and recommendation, stating he did not understand he was required to pay the filing fee at the time he initiated this lawsuit and requesting ninety days to pay the fee. Doc. 22. Finally, despite having already objected to the report and recommendation, Mr. Johnson requests an extension of time to further object, asserting the Clerk failed to provide him the fourth page of the docket sheet in response to his earlier request. Doc. 23. Because Mr. Johnson has objected to the substance of the report and recommendation, his request for an extension is moot. Further, Mr. Johnson’s objection is straightforward, and so the court would not be aided by additional filings on this issue. 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.” Id. The only exception to this rule arises when “the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). Because Mr. Johnson failed to pay his filing fee at the time he filed this action, it must be dismissed. The remaining issues Mr. Johnson raises are also moot; however, the court will instruct the Clerk to send Mr. Johnson a new § 1983 form complaint. After careful consideration of the record in this case and the magistrate judge’s report, Mr. Johnson’s objection is OVERRULED. Doc. 22. The court ADOPTS the magistrate judge’s report and ACCEPTS the recommendation. Doc. 14. Consistent with that recommendation, Mr. Johnson’s application to proceed in forma pauperis is DENIED, Doc. 2, and this action is due to be dismissed without prejudice under 28 U.S.C. § 1915(g). Mr. Johnson’s requests for appointment of counsel, an investigation into the alleged confiscation of his personal property, and an extension of time to file another objection to the report and recommendation are DENIED as MOOT. Docs. 20, 21, 23. A separate order will be entered. DONE and ORDERED this 7th day of December, 2022. UNITED STATES DISTRICT JUDGE