United States District Court, N.D. Florida, Panama City Division
AVION T. LAWSON, Plaintiff,
C. BRANNON, et al., Defendants.
REPORT AND RECOMMENDATION
R. JONES, UNITED STATES MAGISTRATE JUDGE.
a inmate in the custody of the Florida Department of
Corrections at Lake Correctional Institution, initiated this
case by filing a complaint pursuant to 42 U.S.C. § 1983.
(ECF No. 1.) Plaintiff failed to either pay the $400.00
filing fee or file a motion for leave to proceed as a pauper.
The Court will not require Plaintiff to correct these
deficiencies, however, because it is clear that this case is
due to be dismissed pursuant to the three-strikes bar under
28 U.S.C. § 1915(g).
claims center around alleged excessive force, deliberate
indifference to serious medical needs, and retaliation that
he says he endured while incarcerated several years ago at
Northwest Florida Reception Center (“NWFRC”). All
of the Defendants that Plaintiff attempts to bring claims
against were employees-wardens, officers, captains,
sergeants, and nurses-at NWFRC.
is subject to the three-strikes bar of § 1915(g) because
he has had three or more prior civil actions or appeals
dismissed on the grounds that they were frivolous, malicious,
or failed to state a claim upon which relief may be granted.
See Lawson v. Barber, No. 5:15cv229/MP/EMT, ECF No.
14 (N.D. Fla. Nov. 23, 2015) (dismissing case without
prejudice as malicious under 28 U.S.C. §
1915(e)(2)(B)(I)); Lawson v. Marshall, No.
5:15cv199/LC/GRJ, ECF No. 11 (N.D. Fla. Oct. 30, 2015)
(dismissing case without prejudice for abuse of the judicial
process and noting that the dismissal operates as a
“strike” pursuant to § 1915(g)); Lawson
v. Leavins, No. 5:15cv76/RS/EMT, ECF No. 9 (N.D. Fla.
May 5, 2015) (dismissing case without prejudice as malicious
pursuant to § 1915(e)(2)(B)(I)). The Court has confirmed
that the inmate identification number of the plaintiff in the
previous cases is the same as Plaintiff's inmate
identification number in this case: W38414. Plaintiff is
therefore barred from proceeding as a pauper in a civil
action unless he is under “imminent danger of serious
physical injury.” § 1915(g).
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.
Vague allegations of harm and unspecific references to injury
are insufficient. White v. 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 the exception is 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
alleged constitutional violations Plaintiff complains of
occurred while Plaintiff was incarcerated at NWFRC. Plaintiff
is no longer at NWFRC and, liberally construed, Plaintiff has
alleged no facts suggesting that he faces any imminent danger
stemming from his present conditions of confinement.
Accordingly, the Court concludes that the three-strikes
provision of § 1915(g) bars Plaintiff from bringing this
case as a pauper.
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). Plaintiff did not pay the filing fee at the
time he initiated this suit. This case is therefore due to be
respectfully RECOMMENDED that this case
should be DISMISSED WITHOUT PREJUDICE
pursuant to the three-strikes bar under 28 U.S.C §
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 ...