United States District Court, N.D. Florida, Pensacola Division
GERMAINE R. RUDDICK, Inmate No. B-281646, Plaintiff,
JOHN DOE STEVENS, et al., Defendants.
REPORT AND RECOMMENDATION
ELIZABETH M. TIMOTHY, CHIEF UNITED STATES MAGISTRATE JUDGE
an inmate of the state correctional system proceeding pro se,
initiated this action by filing a civil rights complaint
under 42 U.S.C. § 1983 (ECF No. 1). Plaintiff has
neither paid the filing fee not moved to proceed in forma
court takes judicial notice that there are at least three
cases previously filed by Plaintiff in the United States
District Courts that have been dismissed as frivolous or for
failing to state a claim upon which relief may be granted.
Pursuant to the “three strikes” provision of the
Prison Litigation Reform Act:
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.
28 U.S.C. § 1915(g).
fact, Plaintiff's status as a prisoner with “three
strikes” has been determined in another civil rights
complaint he previously filed in this district in No.
1:14cv47/MW/GRJ. As provided in that case:
This Court has previously dismissed two of Plaintiff's
complaints under § 1915(g). Ruddick v. Florida
Department of Corrections, No. 4:11-cv-332- SPM-WCS
(N.D. Fla. Oct. 20, 2011); Ruddick v. Tucker, No.
4:12-cv-641-MWCAS (N.D. Fla. May 21, 2013). Although
Plaintiff has filed more than 20 cases in Florida federal
courts, the Court notes the disposition of the following
three cases, sufficient to trigger the application of the
three-strikes provision: (1) Ruddick v. Mangonia Park
Police, No. 9:00-cv-9144 (S.D. Fla. Apr. 23, 2001)
(dismissed for failure to state a claim under 28 U.S.C.
§ 1915(e)(2)(B)(iii)); (2) Ruddick v. Neumann,
No. 9:01-cv-8247 (S.D. Fla. Aug. 28, 2001) (same); (3)
Ruddick v. State of Florida, No. 1:00-cv-3724 (S.D.
Fla. May 10, 2001) (dismissed for failure to state a claim,
as frivolous, and for seeking monetary relief against
defendant immune from such relief; appeal was also dismissed
Ruddick v. United States Attorney, No.
1:14cv47/MW/GRJ, ECF No. 3 at 1-2 (Report and Recommendation,
filed April 2, 2014, and adopted by the Court on April 10,
2014 (ECF No. 5)). Thus, Plaintiff's status as a
“three striker” is established.
prisoner with three strikes is precluded from proceeding in
forma pauperis in a civil action unless it can be shown that
he meets the “imminent injury” exception that is
provided in Section 1915(g). For this exception to be met,
the court must be able to determine from the complaint that
the Plaintiff is under imminent danger of serious physical
injury. Brown v. Johnson, 387 F.3d 1344, 1350 (11th
Cir. 2004). In so doing, the court must construe the
complaint liberally and accept its allegations as true.
See id.; Jackson v. Reese, 608 F.2d 159,
160 (5th Cir. 1979); McAlphin v. Toney, 281 F.3d
709, 710 (8th Cir. 2002). However, general allegations that
are not grounded in specific facts to indicate that serious
physical injury is imminent are not sufficient to invoke the
exception to Section 1915(g). Martin v. Shelton, 319
F.3d 1048, 1050 (8th Cir. 2003). The plaintiff must allege
and provide “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 an insufficient basis 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 is not triggered
where threat of assault by other prisoners ceased to exist
when plaintiff was placed in administrative confinement prior
to the filing of his complaint); see also Lewis v.
Sullivan, 279 F.3d 526, 531 (7th Cir. 2002) (holding
that “imminent danger” exception is construed
narrowly and available only “for genuine emergencies,
” where “time is pressing” and “a
threat . . . is real and proximate.”). Moreover,
“imminent danger” is assessed not at the time of
the alleged incident, but rather at the time the complaint is
filed. See Abdul-Akbar v. McKelvie, 239 F.3d 307,
213 (3d Cir. 2001).
instant case, Plaintiff's complaint does not show that he
is under imminent danger of serious physical injury. His
claims, based on alleged invasion of privacy, center upon two
incidents in 2015 in which he alleges he was subjected to a
strip search while housed at Santa Rosa Correctional
Institution and one incident in February of 2017 in which he
was subjected to a pat down search that included his groin
area (ECF No. 1 at 6-7). Not only do these allegations
suggest that Plaintiff is not in any danger of serious
physical injury, the three isolated incidents, dated well in
the past, do not suggest that any threat would be imminent.
His claims therefore do not meet the exception.
Plaintiff is subject to section 1915(g), he is not eligible
to proceed in forma pauperis. Since Plaintiff did not pay the
$400.00 filing fee at the time he submitted this civil rights
action, this case should be dismissed. Leave should not be
provided to allow him to pay the fee. Rather, because a
prisoner who is no longer entitled to proceed in forma
pauperis must pay the filing fee at the time he initiates
the suit, his failure to do so warrants
dismissal without prejudice. Dupree v. Palmer, 284
F.3d 1234 (11th Cir. 2002); Vanderberg v. Donaldson,
259 F.3d 1321, 1324 (11th Cir. 2001). Dismissal without
prejudice would permit the initiation of a new cause of
action accompanied by payment of the $400.00 filing fee in
it is respectfully RECOMMENDED:
pursuant to 28 U.S.C. § 1915(g), this cause be
DISMISSED WITHOUT PREJUDICE to
Plaintiff's initiating a new cause of action accompanied