Ramey v. Lewis (INMATE 2)

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION ABRAHAM RAMEY, ) ) Plaintiff, ) ) v. ) CIVIL ACT. NO. 2:23-cv-611-ECM ) LT. LEWIS, et al., ) ) Defendants. ) MEMORANDUM OPINION and ORDER On November 7, 2023, the Magistrate Judge entered a Recommendation that the Plaintiff’s motion to proceed in forma pauperis (doc. 2) be denied and his 42 U.S.C. § 1983 action be dismissed without prejudice. (Doc. 4). The Plaintiff filed a document entitled “Notice of Appeal (Amended)” (doc. 5), which the Court construes as objections to the Recommendation. After carefully reviewing the record in this case, the Recommendation of the Magistrate Judge, and the Plaintiff’s objections, the Court concludes that the Plaintiff’s objections are due to be overruled, the Recommendation of the Magistrate Judge is due to be adopted, the Plaintiff’s motion to proceed in forma pauperis (doc. 2) is due to be denied, and this case is due to be dismissed without prejudice.

When a party objects to a Magistrate Judge’s Report and Recommendation, the district court must review the disputed portions de novo. 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667, 674 (1980). The district court “may accept, reject, or modify the recommended disposition; receive further evidence; or resubmit the matter to the magistrate judge with instructions.” 28 U.S.C. § 636(b)(1). De novo review requires that the district court independently consider factual issues based on the record. Jeffrey S. by Ernest S. v. State Bd. of Educ. of State of Ga., 896 F.2d 507, 513 (11th Cir. 1990).

However, objections to the Magistrate Judge’s Report and Recommendation must be sufficiently specific in order to warrant de novo review. See LoConte v. Dugger, 847 F.2d 745, 750 (11th Cir. 1988) (“Whenever any party files a timely and specific objection to a finding of fact by a magistrate, the district court has an obligation to conduct a de novo review of the record with respect to that factual issue.”). Otherwise, a Report and Recommendation is reviewed for clear error.

The Court has carefully reviewed the record in this case, the Recommendation of the Magistrate Judge, and the Plaintiff’s objections. To the extent the Plaintiff makes conclusory objections, these objections are reviewed for clear error and are due to be overruled.

In his objections, the Plaintiff essentially restates the First Amendment claim asserted in his complaint (doc. 1). The Plaintiff fails to show, however, that the Magistrate Judge erred in finding the Plaintiff’s allegations insufficient to demonstrate that he was “under imminent danger of serious physical injury” when he filed this action, as required to meet the exception to the application of 28 U.S.C. § 1915(g). Accordingly, this objection is due to be overruled.

Accordingly, upon an independent review of the record, and for good cause, it is ORDERED as follows that: 1. The Plaintiff’s objections (doc. 5) are OVERRULED; 2. The Recommendation of the Magistrate Judge (doc. 4) is ADOPTED; 3. The Plaintiff’s motion to proceed in forma pauperis (doc. 2) is DENIED; 4. This case is DISMISSED without prejudice.

A separate Final Judgment will be entered.

DONE this 28th day of November, 2023.

/s/ Emily C. Marks EMILY C. MARKS CHIEF UNITED STATES DISTRICT JUDGE