United States District Court, N.D. Florida, Tallahassee Division
RANDY A. HART, Plaintiff,
JULIE JONES, et al., Defendants.
REPORT AND RECOMMENDATION
R. JONES United States Magistrate Judge
Randy A. Hart, DOC #075432, an inmate presently confined at
Franklin Correctional Institution, initiated this case by
filing a handwritten pro se Complaint pursuant to 42
U.S.C. § 1983 and seeks leave to proceed as a pauper.
ECF Nos. 1, 2. Plaintiff failed to use this Court's form
for pro se prisoner complaints, and therefore the
Court determined that he should be required to file an
amended complaint on the Court's form. ECF No. 9.
Further, upon preliminary screening of the Complaint the
Court determined that Plaintiff is subject to the
three-strikes bar of 28 U.S.C. § 1915(g). Id.
The Court ordered Plaintiff to show cause as to why the
Complaint should not be dismissed pursuant to the
three-strikes bar. This case is now before the Court on ECF
No. 10, Plaintiff's amended complaint and response to the
show cause order. For the following reasons, the undersigned
recommends that this case be dismissed.
Prison Litigation Reform Act amended 28 U.S.C. § 1915 by
adding the following subsection:
(g) 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
28 U.S.C. § 1915(g).
review of the Court's PACER case locator confirms that
Plaintiff is subject to the three-strikes bar. See,
e.g., Hart v. Secretary,
No.5:17-cv-608-Oc-10PRL ECF No. 2 (M.D. Fla. 1/18/18)
(dismissing case pursuant to three-strikes bar and noting
Plaintiff's extensive filing history).Because Plaintiff
is subject to the three-strikes bar, he is barred from
proceeding as a pauper in a civil action unless he is under
“imminent danger of serious physical injury.” 28
U.S.C. § 1915(g). The relevant inquiry is “whether
[the] complaint, as a whole, alleges imminent danger of
serious physical injury.” Brown v. Johnson,
387 F.3d 1344, 1350 (11th Cir.2004). General allegations that
are not grounded in specific facts which indicate that
serious physical injury is imminent are not sufficient to
invoke the exception to § 1915(g). See Martin v.
Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). The
Plaintiff must make “specific fact allegations of
ongoing serious physical injury, or a pattern of misconduct
evidencing the likelihood of imminent serious physical
injury, ” id., and vague allegations of harm
and unspecific references to injury are insufficient.
White v. State of Colorado, 157 F.3d 1226, 1231
(10th Cir. 1998). A claim by a prisoner that he faced a past
imminent danger is insufficient to allow him to proceed
in forma pauperis pursuant to the imminent danger
exception. Medberry v. Butler, 185 F.3d 1189, 1193
(11th Cir. 1999) (holding that exception not triggered where
threat of assault by other prisoners ceased to exist when
plaintiff was placed in administrative confinement prior to
filing of his complaint); see also Lewis v.
Sullivan, 279 F.3d 526, 531 (7th Cir. 2002)
(imminent danger exception is construed narrowly and
available only “for genuine emergencies, ” where
“time is pressing” and “a threat . . . is
real and proximate.”).
allegations concern the conditions of confinement at Franklin
CI. Plaintiff alleges that the Secretary of the DOC, Julie
Jones, and the Franklin CI Warden, Scott Duval, acted in
“bad faith” by allowing Plaintiff to be housed in
a high custody dormitory where he was threatened by gang
violence and where there were four “eruptions” of
gang violence in December 2017. Plaintiff alleges that his
housing assignment was made in retaliation for filing
lawsuits against prison officials. Plaintiff contends that
prison officials have violated his First Amendment rights by
harassing and retaliating against him. Plaintiff alleges that
his housing assignment places him in imminent danger of
serious physical injury, thereby overcoming the three-strikes
bar. ECF No. 10 at 5-7.
construed, the Complaint as a whole does not allege facts
that suggest that Plaintiff is in imminent danger of serious
physical injury for purposes of evading the three-strikes
bar. Rather, Plaintiff's factual allegations establish
only that incidents of gang violence occurred at Franklin CI
prior to the filing of the Complaint. Plaintiff's
allegations do not establish that he was personally placed in
physical danger during the past incidents, or that he
personally faced imminent danger due to his housing
assignment at the time the complaint was filed.
Plaintiff's allegation that his housing assignment places
him in imminent danger of serious physical injury is
therefore conclusional and insufficient to overcome the
three- strikes bar. See, e.g., Hall v.
Tucker, No. 4:12-cv-315-RH-CAS (N.D. Fla. July 29, 2012)
(conclusory assertion of imminent danger, unsupported by
facts, insufficient to overcome § 1915(g) bar).
the Court concludes that Plaintiff is barred by the
three-strikes provision of 28 U.S.C. § 1915(g) from
bringing this case as a pauper. A prisoner who is no longer
entitled to proceed in forma pauperis must pay the filing fee
at the time he initiates the suit, and failure to do so
warrants dismissal without prejudice. Dupree v.
Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002).
therefore respectfully RECOMMENDED that
leave to proceed as a pauper should be denied and this case
DISMISSED pursuant to the 28 U.S.C §
1915(g) three-strikes bar.
TO THE PARTIES
to these proposed findings and recommendations must be filed
within fourteen (14) days after being served a copy thereof.
Any different deadline that may appear on the electronic
docket is for the court's internal use only, and does not
control. A copy of objections shall be served upon all
other parties. If a party fails to object to the magistrate
judge's findings or recommendations as to any particular
claim or issue contained in a report and recommendation, that
party waives the right to challenge on ...