United States District Court, N.D. Florida, Panama City Division
GERMAINE R. RUDDICK, Plaintiff,
PAMELA JO BONDI, et al., Defendants.
ORDER AND REPORT AND RECOMMENDATION
CHARLES J. KAHN, JR. UNITED STATES MAGISTRATE JUDGE
Germaine R. Ruddick, DC#281646, is an inmate of the Florida
Department of Corrections confined at Northwest Florida
Reception Center (NWFRC). (Doc. 1, p. 2). Plaintiff initiated
this case on February 7, 2018, by filing a civil rights
complaint under 42 U.S.C. § 1983. (Doc. 1). Plaintiff is
suing Florida Attorney General Pamela Jo Bondi and two prison
officials at NWFRC, claiming his constitutional right of
access to the courts was violated when prison staff refused
to recognize as “legal mail” (and provide postage
for) complaints plaintiff sought to mail to state
agencies. (Doc. 1, pp. 7-8 in ECF). Plaintiff also
claims he was denied due process during a prison disciplinary
proceeding in January 2018. (Id., pp. 8-9 in ECF).
As relief, plaintiff seeks punitive damages and the filing of
criminal charges against the defendants under 18 U.S.C.
§ 242. (Id., p. 10 in ECF).
plaintiff's complaint was not accompanied by the filing
fee or a motion to proceed in forma pauperis, the
undersigned entered an order on February 14, 2018, requiring
plaintiff to pay the filing fee or apply to proceed in
forma pauperis. (Doc. 3). In response, plaintiff has
filed a motion to withdraw or strike that order. (Doc. 4).
Plaintiff contends that he does not have to pay a filing fee
or apply to proceed in forma pauperis, because his
complaint is criminal in nature, as evidenced by his demand
for punitive damages and criminal charges. (Id.).
assertion that he is not subject to a filing fee because this
is a criminal proceeding is frivolous. Only the United States
as prosecutor can bring a complaint under 18 U.S.C.
§§ 241 and 242, the criminal analogue of 42 U.S.C.
§ 1983. See Hanna v. Home Ins. Co., 281 F.2d
298, 303 (5th Cir. 1960) (“The sections of Title 18
[§§ 241-242] may be disregarded in this suit. They
are criminal in nature and provide no civil
remedies.”); see also Butler v. Morgan, 562
Fed.Appx. 832 (11th Cir. 2014) (same) (citing
Hanna). Not only is plaintiff required to pay the civil
filing fee, he was required to pay it at the time he filed
his complaint, because he is subject to the “three
strikes” provision of 28 U.S.C. § 1915(g).
28 U.S.C. § 1915(g) prohibits a prisoner from proceeding
in forma pauperis under certain
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 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).
status as a three-striker is established. See Ruddick v.
Stevens, No. 3:17cv914/LAC/EMT, 2018 WL 1354797 (N.D.
Fla. Feb. 23, 2018) (magistrate judge's report
recommending dismissal of plaintiff's civil rights action
pursuant to three-strikes bar and identifying qualifying
cases), adopted, 2018 WL 1353115 (N.D. Fla. Mar. 15,
2018). The cases identified in the February 23, 2018, Report
and Recommendation may be positively identified as filed by
plaintiff because the pleadings (particularly the
applications to proceed in forma pauperis) bear his
name and Florida Department of Corrections' inmate
number, DC#281646. See Ruddick v. Mangonia Park
Police, Case No. 9:00-cv-9144-KLR (S.D. Fla. Apr. 23,
2001) (civil action filed by plaintiff while incarcerated;
dismissed for failure to state a claim); (2) Ruddick v.
Neumann, Case No. 9:01-cv-8247-DTKH (S.D. Fla. Aug. 28,
2001) (same); (3) Ruddick v. State of Florida, Case
No. 1:00-cv-3724-JLK (S.D. Fla. May 10, 2001) (civil action
filed by plaintiff while incarcerated; dismissed for failure
to state a claim, as frivolous, and for seeking monetary
relief against defendant immune from such relief; appeal also
dismissed as frivolous).
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 complaint is devoid of any such
allegations. (See Doc. 1, pp. 7-9 in ECF). 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
it is ORDERED:
motion to withdraw or strike order (doc. 4) is DENIED.
is respectfully RECOMMENDED:
1. That this action be DISMISSED WITHOUT PREJUDICE under 28