United States District Court, N.D. Florida, Panama City Division
ANTONIO JOHNSON, FDOC Inmate No. 446897, Plaintiff,
JULIE McCALL, et al., Defendants.
REPORT AND RECOMMENDATION
ELIZABETH M. TIMOTHY CHIEF UNITED STATES MAGISTRATE JUDGE.
an inmate of the Florida penal system proceeding pro se,
initiated this action by filing a civil rights complaint
under 42 U.S.C. § 1983 (ECF No. 1). As directed by the
court, Plaintiff subsequently filed an amended complaint,
using the court's form for Section 1983 complaints (ECF
No. 14), and he also moved for and was granted leave to
proceed in forma pauperis (ECF Nos. 2, 5).
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 the United States District
Court for the Middle District of Florida, Johnson v.
Sandlin, No. 3:09cv438-J-34TEM. As provided in that
The Court takes judicial notice of filings brought by
Plaintiff in a Court of the United States that were dismissed
on the grounds that they were frivolous, malicious, or failed
to state a claim upon which relief may be granted: (1)
3:05-cv-717-J-99MMH; (2) 3:05-cv-780-J-32MCR; and, (3)
Because Plaintiff has had three or more prior dismissals and
is not under imminent danger of serious physical injury, his
application to proceed in forma pauperis will be denied and
this action will be dismissed without prejudice.
Johnson v. Sandlin, No. 3:09cv438-J-34TEM, Dkt. No.
4 at 2 (May 18, 2009). Thus, Plaintiff's status as a
“three striker” is established.
court additionally notes that Plaintiff failed to disclose
any of the cases cited above, despite the fact that the
complaint form specifically directed him to disclose
information regarding all prior civil cases filed in state
and federal court (ECF No. 14 at 3-5). This is the sort
of false statement or omission that the court in the past has
subjected prisoner complaints to dismissal as malicious or
abusive of the judicial process, and the reason for this is
underscored by the very fact in this case that
Plaintiff's failure to disclose resulted in the
court's initial failure to recognize that Plaintiff was
subject to the three strikes provision.
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).
instant case, Plaintiff's complaint is devoid of any
allegations suggesting that he is under imminent danger of
serious physical injury. Rather, his claims and allegations
are concerned with a plea for clemency that he filed with the
Defendant state officials which has been administered in a
discriminatory manner. His claims in no way evidence physical
injury and therefore do not meet the exception.
Plaintiff is subject to section 1915(g), he is not eligible
to proceed in forma pauperis. Because 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 ...