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Scott v. Hasty

United States District Court, N.D. Florida, Panama City Division

July 15, 2019

TONY L. SCOTT, Plaintiff,
v.
BEN HASTY, Defendant.

          REPORT AND RECOMMENDATION

          MICHAEL J. FRANK UNITED STATES MAGISTRATE JUDGE.

         Plaintiff 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.[1]

         I. Background and Procedural History

         Plaintiff Tony L. Scott, DC# 204581, is an inmate of the Florida Department of Corrections currently confined at Suwanee Correctional Institution in Live Oak, Florida.[2] 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).

         II. Discussion

         Title 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).

         A 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).

         Scott 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 while incarcerated).

         Scott's 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.[3] All three of Scott's “strikes” were entered prior to Scott filing the present lawsuit.

         As 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).

         III. ...


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