United States District Court, N.D. Florida, Panama City Division
TONY L. SCOTT, Plaintiff,
BEN HASTY, Defendant.
REPORT AND RECOMMENDATION
MICHAEL J. FRANK UNITED STATES MAGISTRATE JUDGE.
Tony L. Scott has filed a civil rights complaint under 42
U.S.C. § 1983 (Doc. 1), a motion to proceed in forma
pauperis (Doc. 2), and a motion for appointment of
counsel (Doc. 3). The undersigned concludes that Scott's
motion to proceed in forma pauperis should be denied
and this case dismissed under 28 U.S.C. § 1915(g),
because Scott is barred from proceeding in forma
pauperis and failed to pay the filing fee upon
initiating this lawsuit.
Background and Procedural History
Tony L. Scott, DC# 204581, is an inmate of the Florida
Department of Corrections currently confined at Suwanee
Correctional Institution in Live Oak, Florida. Scott initiated
this action on June 5, 2019, by filing a civil rights
complaint under 42 U.S.C. § 1983, naming one Defendant:
Dr. Ben Hasty. (Doc. 1, p. 2). Scott describes Hasty as a
self-employed physician in Panama City, Florida. (Doc. 1, p.
2). Scott claims that in 2017, Dr. Hasty subjected him to
cruel and unusual punishment in violation of the Eighth
Amendment, when he failed to promptly remove stitches from
Scott's right eye following surgery for glaucoma. (Doc.
1, pp. 6-7 in ECF). Scott claims that Hasty's failure to
promptly remove the stitches caused his eye to become
infected and, ultimately, the loss of vision in that eye. As
relief, Scott seeks $750, 000 in compensatory damages and
$1.500, 000 in punitive damages. (Doc. 1, p. 8 in ECF).
28 U.S.C. § 1915(g) prohibits a prisoner from proceeding
in forma pauperis under certain circumstances:
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).
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 that 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).
has already accrued three strikes, as recognized by the
United States District Court for the Middle District of
Florida. See Scott v. Rivera, No. 3:16cv1585-MMH-PDB
(M.D. Fla. Jan. 9, 2017) (dismissing Scott's civil action
pursuant to three-strikes bar and identifying qualifying
cases). As determined by the Middle District, Scott's
three qualifying cases are: (1) Scott v. Corizon Med.
Servs, No. 3:16cv535-MMH-PDB (M.D. Fla. May 5, 2016)
(dismissing, for failure to state a claim, civil rights
action filed by Scott while incarcerated); (2) Scott v.
Morgan, No. 3:11cv603-LC-EMT (N.D. Fla. Feb. 13, 2012)
(dismissing as malicious civil rights action filed by Scott
while incarcerated); (3) Scott v. Crowell, No.
9:09cv80672-WPD (S.D. Fla. Aug. 28, 2009) (dismissing, for
failure to state a claim, civil rights action filed by Scott
present complaint acknowledges Middle District No.
3:16cv1585, and two of the three actions identified therein
as strikes. (Doc. 1, p. 4 in ECF (acknowledging No.
3:11-cv-603 and No. 9:09cv80672)). Although Scott does not
disclose No. 3:16-cv-535 in his present complaint, that case
clearly was filed by Scott, because it bears his name and DC#
204581, and was judicially determined by the Middle District
to be Scott's filing. All three of Scott's
“strikes” were entered prior to Scott filing the
Scott has three strikes, he 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); Brown, supra. Scott's
allegations do not make that showing. Scott claims that in
2017, Dr. Hasty was deliberately indifferent to his serious
medical need when he delayed removing Scott's stiches.
Scott alleges that the stitches should have been removed 30
days after his July 19, 2017, surgery, but were instead
removed 63 days after the surgery. (Doc. 1, pp. 6-7 in ECF).
Accepting these allegations as true, they fail to make a
colorable showing that Scott is in imminent danger of serious
physical injury. An allegation of past danger does not invoke
§ 1915(g)'s exception. Medberry v. Butler,
185 F.3d 1189, 1193 (11th Cir. 1999) (holding that “a
prisoner's allegation that he faced imminent danger
sometime in the past is an insufficient basis to allow him to
proceed in forma pauperis pursuant to the imminent danger
exception to [§ 1915(g)]”.). Because Scott is
barred from proceeding in forma pauperis and failed
to pay the filing fee at the time he filed this lawsuit, this
case should be dismissed under § 1915(g).