United States District Court, N.D. Florida, Pensacola Division
ORDER AND REPORT AND RECOMMENDATION
CHARLES J. KAHN, JR. UNITED STATES MAGISTRATE JUDGE.
a prisoner proceeding pro se, commenced this action
by filing a complaint pursuant to 42 U.S.C. § 1983.
(Doc. 1). On January 30, 2018, the court ordered plaintiff to
file a completed motion to proceed in forma pauperis
or pay the $400 filing fee within 30 days. (Doc. 3). Instead
of complying with the order, plaintiff filed a document
titled “Motion to Vacate the Order Dated January 30,
2018, in Case Number 3:18cv191-MCR Because this Instant Case
Should Remain as Actually Civil Case Number 3:17cv126/RV/EMT
Case Being Refiled Pursuant to this Court's Order on File
Without Prejudice Dated on June 20th, 2017.” (Doc. 4).
Because this case involves identical allegations to N.D. Fla.
No. 3:17cv126-RV-EMT-a case dismissed without prejudice as
malicious due to plaintiff's failure to accurately
describe his litigation history-plaintiff objected to being
assessed a second $400 filing fee.
March 14, 2018, the court denied the motion and ordered
plaintiff to show cause within 14 days why this case should
not be dismissed due to his failure to pay the $400 filing
fee or submit a motion to proceed in forma pauperis.
(Doc. 5). Because plaintiff did not respond to the show cause
order within the allotted time, the undersigned entered a
report on April 3, 2018, recommending that this case be
dismissed without prejudice. (Doc. 6). On April 5, 2018, the
court received a motion to proceed in forma
pauperis. (Doc. 7). The April 3 Report and
Recommendation, therefore, will be vacated.
reviewing the complaint and plaintiff's litigation
history, however, the undersigned concludes this case must be
dismissed under 28 U.S.C. § 1915(g) because plaintiff is
barred from proceeding in forma pauperis and failed
to pay the full filing fee upon initiation of this suit.
28 U.S.C. § 1915(g) prohibits a prisoner from proceeding
in forma pauperis under certain
circumstances. Section 1915(g) provides:
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 no longer entitled to proceed in forma
pauperis must pay the filing fee at the time he
initiates a lawsuit, and his failure to do so warrants
dismissal of his case without prejudice. See Dupree v.
Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (holding
“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”). The only exception is if the
prisoner alleges he is “under imminent danger of
serious physical injury.” 28 U.S.C. § 1915(g).
court takes judicial notice of two federal civil actions and
one appeal previously filed by plaintiff, while incarcerated,
which were dismissed as malicious and/or frivolous. See
Reed v. Geo Group, Inc., Appeal No. 17-13360 (11th Cir.
Dec. 12, 2017) (denying motion to proceed in forma
pauperis and dismissing appeal as frivolous); Reed
v. Geo Group, Inc., No. 3:17cv126-RV-EMT (N.D. Fla. July
18, 2017) (case dismissed without prejudice as malicious
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)); Reed v.
State of Florida Legislature, No. 8:90cv519-UA (M.D.
Fla. Oct. 12, 1990) (case dismissed as
plaintiff may not litigate this case in forma
pauperis unless he demonstrates he is “under
imminent danger of serious physical injury.” 28 U.S.C.
§ 1915(g). The complaint alleges officials at Blackwater
River Correctional Facility: (1) failed to properly treat a
left wrist injury plaintiff suffered in May 2017; and (2)
allowed plaintiff to be exposed to environmental tobacco
smoke. Plaintiff, however, is no longer incarcerated at
Blackwater River Correctional Facility; he is currently
incarcerated at Jefferson Correctional Institution, and was
when he filed the complaint in this case. (Doc. 1, p. 1, 17).
As plaintiff's allegations concern events and individuals
at a prior place of confinement, the complaint does not
demonstrate plaintiff is under imminent danger of serious
physical injury. Even without regard to his present state of
confinement, the allegations do not show imminent danger.
Because plaintiff did not pay the filing fee at the time he
initiated this action, and because it plainly appears
plaintiff is not entitled to proceed in forma
pauperis, this case should be dismissed under §
it is ORDERED:
1. The April 3, 2018, Report and Recommendation (doc. 6) is
is respectfully RECOMMENDED:
1. That this action be DISMISSED WITHOUT PREJUDICE under 28