United States District Court, S.D. Florida
REPORT AND RECOMMENDATIONS OF MAGISTRATE
incarcerated pro se plaintiff, Leroy Johnson, filed
a civil rights complaint pursuant to 42 U.S.C. § 1983.
[ECF No. 1]. The complaint names two defendants (state
prosecutors) and alleges they filed “misleading and
perjury statements, which denied Plaintiff his constitutional
rights under the Eighth and Fourteenth Amendments.”
[Id. at 2]. Plaintiff asks this Court to fire the
prosecutors from their positions, seeks $4, 000, 000 in
damages, and wants his conviction overturned. [Id.].
Plaintiff also generally alleges that he was attacked by
officers at the Broward County Main Jail and attempted
suicide as a result of the trauma. [Id. at 4].
Plaintiff, however, provides no facts related to his claims
of physical or psychological abuse against any named
defendant, does not name the responsible individuals, and
provides no dates or details of the alleged incident.
[Id. at 4].
latest filing has been referred to the Undersigned for the
issuance of all preliminary orders and any recommendations to
the district court regarding dispositive motions.
See 28 U.S.C. § 636(b)(1)(B), (C); Fed.R.Civ.P.
72(b), S.D. Fla. Local Rule 1(f) governing Magistrate Judges,
and S.D. Fla. Admin. Order 2019-2.
has not paid the $400.00 filing fee but filed a motion to
proceed in forma pauperis (IFP). [ECF No. 3]. Prior
to the initial screening of the instant complaint, this Court
denied Plaintiff's motion because he did not submit the
required account statement. [ECF No. 4]. Nonetheless, it is
futile for Plaintiff to attempt to proceed in forma
pauperis. That is because the instant complaint is
subject to DISMISSAL based on Plaintiff's status as a
“three-striker” under the Prison Litigation
Reform Act (“PLRA”).
Section 1915(g) Standard
prisoner attempting to proceed IFP in a civil action in
federal court must comply with the mandates of the Prison
Litigation Reform Act (“PLRA”), Pub. L. No.
104-134, §§ 801-810, 110 Stat. 1321 (1996). 28
U.S.C. § 1915(g) of the PLRA 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 maybe granted, unless the
prisoner is under imminent danger of serious physical injury.
constitutionality of the foregoing provision of the PLRA,
referred to as 'three strikes provision, ” has been
comprehensively explored and upheld by the Eleventh Circuit
Court of Appeals. See Rivera v. Allin, 144 F.3d 719
(11th Cir. 1998) (internal citations omitted), abrogated
on other grounds by Jones v. Bock, 549 U.S. 199 (2007).
Specifically, the Eleventh Circuit has determined that the
“three strikes” IFP provision does not violate an
inmate's First Amendment right of access to the courts;
the doctrine of separation of judicial and legislative
powers; the Fifth Amendment's right to due process of
law; or, an inmate's right to equal protection.
Id. at 721-27.
invoke the exception to § 1915(g), a plaintiff must
allege and provide specific factual allegations of ongoing
serious physical injury, or a pattern of misconduct
evidencing the likelihood of imminent serious physical
injury; and vague allegations of harm and unspecific
references to injury are insufficient. See also Miller v.
Donald, 541 F.3d 1091, 1096 (11th Cir. 2008)
(“Congress was deliberate in leaving an exception for
claims of imminent threat of serious physical injury when it
enacted the three-strikes provision that screens out all
other IFP suits as part of the PLRA.”).
in order to meet this exception, “the complaint, as a
whole, [must] allege imminent danger of serious physical
injury.” Brown v. Johnson, 387 F.3d 1344, 1350
(11th Cir. 2004). The imminent danger that serves as the
basis for the complaint must be on-going at the time of
filing the lawsuit, not merely at the time of the alleged
incident. See Medberry v. Butler, 185 F.3d 1189,
1193 (11th Cir. 1999) (prison officials deliberately
indifferent to plaintiff's safety by placing him in
dangerous situation, causing prisoner to fear for his life,
which ceased at the time of filing, fails to demonstrate
imminent danger). Because the imminent danger exception does
not appear to apply in this case, “the proper procedure
is for the district court to dismiss the complaint without
prejudice.” Dupree v. Palmer, 284 F.3d 1234,
1236 (11th Cir. 2002) (per curiam).
is a multiple filer, having filed numerous § 1983
actions in this Court. This Court dismissed Nos.
11-61598-CV-ZLOCH, 12-62067-CV-WILLIAMS, and
13-60327-CV-SCOLA for failure to state a claim.
demonstrated in the list of cases above, Plaintiff has filed
at least three cases which fit the criteria of the statute.
It does not appear that Plaintiff is under imminent danger of
serious physical injury; and it would, therefore, be