United States District Court, N.D. Florida, Pensacola Division
ORDER AND REPORT AND RECOMMENDATION
CHARLES J. KAHN, JR., UNITED STATES MAGISTRATE JUDGE.
Johnny Welch, DC#G05492, is a Florida inmate presently
confined at Holmes Correctional Institution. (Doc. 1).
Plaintiff initiated this case on September 19, 2017, by
filing a civil rights complaint under 42 U.S.C. § 1983.
(Doc. 1). Plaintiff claims he was deprived of due process at
a prison disciplinary hearing, and alleges these facts in
On 9-19-17, I was brought to a disciplinary hearing conducted
by classification officer Marsh. I presented evidence showing
that I was never wrote a “D.R.”, and that the
“D.R.”, in which I was at the hearing for inmate
Day was already found guilty of. Also, I was held in
confinement beyond time frame of Florida Administrati[ve]
Code, and all my evidence was not attached and loss of gain
(Doc. 1, p. 2). As relief, plaintiff seeks $10, 000.00 in
plaintiff's complaint was not on the court form and was
not accompanied by the filing fee or a motion to proceed
in forma pauperis, the court ordered plaintiff to
re-file his complaint on the court form and to pay the filing
fee or submit an application to proceed in forma
pauperis. (Doc. 2). Plaintiff now moves to proceed
in forma pauperis (doc. 3), and also moves for an
extension of time to file his amended complaint on the
grounds that he “ha[s] been having problems with:
getting legal material, legal work from property, legal
copies and forms” (doc. 4). In addition, plaintiff
moves for an emergency injunction to preserve “audio
& video” evidence showing that on October 23, 2017,
Sergeant Hewett, the officer who investigated and served the
D.R., admitted to plaintiff that: (1) “the D.R. he,
Sgt. Hewett, served me, some other inmate had indeed been
served by him, and found guilty at a hearing.” and (2)
“A D.R. hearing for me was indeed postponed do [sic] to
another inmate being served and found guilty of the same
D.R.” (Doc. 5, p. 1).
review of plaintiff's pleadings and prior litigation
history, the court concludes that plaintiff's motion to
proceed in forma pauperis should be denied and this
case dismissed under 28 U.S.C. § 1915(g), because
plaintiff is barred from proceeding in forma
pauperis and failed to pay the filing fee upon
initiating this suit. Title 28 U.S.C. § 1915(g)
prohibits a prisoner from proceeding in forma
pauperis under certain circumstances:
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.
prisoner who is barred from proceeding in forma
pauperis must pay the filing fee at the time he
initiates his lawsuit, and failure to do so warrants
dismissal of his case without prejudice. See Dupree v.
Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (holding
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 provisions of § 1915(g)” because the
prisoner “must pay the filing fee at the time he
initiates the suit.”); Vanderberg v.
Donaldson, 259 F.3d 1321, 1324 (11th Cir. 2001) (stating
that after three meritless suits, a prisoner must pay the
full filing fee at the time he initiates suit). The only
exception is if the prisoner alleges that he is “under
imminent danger of serious physical injury.” 28 U.S.C.
§ 1915(g); see also Brown v. Johnson, 387 F.3d
1344 (11th Cir. 2004).
court takes judicial notice of the following four federal
civil actions previously filed by plaintiff, while
incarcerated, that were dismissed as frivolous, malicious or
for failure to state a claim on which relief may be granted.
See Welch v. Walton Correctional Institution, No.
3:13cv430-LC-CJK (N.D. Fla. Dec. 9, 2013) (dismissing
plaintiff's prisoner civil rights action as malicious for
plaintiff's abuse of the judicial process in failing to
truthfully respond to questions on the complaint form
concerning his litigation history); Welch v.
Whistler, No. 1:14cv111-MP-GRJ (N.D. Fla. Dec. 12, 2014)
(dismissing plaintiff's prisoner civil rights action as
frivolous); Welch v. Carter, No. 5:17cv42-MCR-GRJ
(N.D. Fla. Mar. 17, 2017) (dismissing plaintiff's
prisoner civil rights action as malicious); Welch v.
Officer Carter, No. 5:17cv73-MCR-GRJ (N.D. Fla. Apr. 4,
2017) (dismissing plaintiff's prisoner civil rights
action for failure to state a claim on which relief may be
granted). The foregoing cases may be positively identified as
having been filed by plaintiff, because they bear his name
and Florida Department of Corrections' DC# G05492.
Plaintiff acknowledged three of the foregoing cases in his
original complaint. (Doc. 1, p. 1).
plaintiff has three strikes, he may not litigate this case
in forma pauperis unless he demonstrates that he is
“under imminent danger of serious physical
injury.” 28 U.S.C. § 1915(g); Brown,
supra. Plaintiff's pleadings are devoid of any such
allegations. Plaintiff alleges that he was deprived of due
process in his disciplinary proceeding and held in
confinement beyond the time permitted. These allegations do
not qualify for § 1915(g)'s imminent danger
exception. Because plaintiff is barred from proceeding in
forma pauperis and failed to pay the filing fee at the
time he initiated this suit, this case should be dismissed
under § 1915(g).
it is ORDERED:
motion for extension of time (doc. 4) is DENIED.
is respectfully RECOMMENDED:
plaintiff's motion to proceed in forma pauperis
(doc. 3) be DENIED and this action DISMISSED WITHOUT