United States District Court, N.D. Florida, Pensacola Division
TIMOTHY KENT DEWITT, Inmate No. 805195, Plaintiff,
FLORIDA DEPARTMENT OF CORRECTIONS, et al., Defendants.
ELIZABETH M. TIMOTHY CHIEF UNITED STATES MAGISTRATE JUDGE.
an inmate of the Walton County Jail proceeding pro se,
initiated this action by filing a civil rights complaint
under 42 U.S.C. § 1983 (ECF No. 1). Plaintiff has not
paid the filing fee in full but has filed a motion to proceed
in forma pauperis (ECF No. 2). 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).
court takes judicial notice that at least three cases
previously filed by Plaintiff in the United States District
Courts have been dismissed as frivolous, as malicious, or for
failing to state a claim upon which relief may be granted.
See Dewitt v. Spivey, No. 5:96cv0084/LAC (N.D. Fla.
May 31, 1996) (dismissing Plaintiff's prisoner civil
rights action as frivolous or malicious under 28 U.S.C.
§ 1915(d)); Dewitt v. Singletary,
5:96cv0115/LAC (N.D. Fla. Jul. 12, 1996) (dismissing
Plaintiff's prisoner civil rights action as frivolous or
malicious under 28 U.S.C. § 1915(d)); Dewitt v.
Florida State Prison, 3:01cv1208/HES (M.D. Fla. Oct. 29,
2001) (dismissing Plaintiff's prisoner civil rights
action as frivolous). The foregoing cases may be positively
identified as having been filed by Plaintiff, because they
bear his name and Florida Department of Corrections Inmate
Number, 805195. All of the dismissals were entered prior to
June 30, 2019, the date Plaintiff filed this lawsuit. Thus,
Plaintiff's status as a “three striker” is
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 apply, 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). However, general allegations that
are not grounded in specific facts to indicate that serious
physical injury is imminent are not sufficient to invoke the
exception to Section 1915(g). Martin v. Shelton, 319
F.3d 1048, 1050 (8th Cir. 2003). The plaintiff must allege
and provide “specific fact allegations of ongoing
serious physical injury, or a pattern of misconduct
evidencing the likelihood of imminent serious physical
injury, ” id., and vague allegations of harm
and unspecific references to injury are insufficient.
White v. State of Colorado, 157 F.3d 1226, 1231
(10th Cir. 1998). A claim by a prisoner that he faced a past
imminent danger is an insufficient basis to allow him to
proceed in forma pauperis pursuant to the imminent danger
exception. Medberry v. Butler, 185 F.3d 1189, 1193
(11th Cir. 1999) (holding that exception is not triggered
where threat of assault by other prisoners ceased to exist
when plaintiff was placed in administrative confinement prior
to the filing of his complaint); see also Lewis v.
Sullivan, 279 F.3d 526, 531 (7th Cir. 2002) (holding
that “imminent danger” exception is construed
narrowly and available only “for genuine emergencies,
” where “time is pressing” and “a
threat . . . is real and proximate.”). Moreover,
“imminent danger” is assessed not at the time of
the alleged incident, but rather at the time the complaint is
filed. See Abdul-Akbar v. McKelvie, 239 F.3d 307,
213 (3d Cir. 2001).
Plaintiff's complaint does not show that he was under
imminent danger of serious physical injury at the time he
initiated this action. Plaintiff's allegations relate to
an incident involving excessive force on August 5, 2018 (ECF
No. 1 at 6-10). He names the Florida Department of
Corrections and five employees of Walton Correctional
Institution (“Walton C.I.”) as Defendants (ECF
No. 1 at 1). He states he was sprayed twice with chemical
agents (including once in his mouth), and that he was kicked
and beaten in his “head, face and torso” which
required “hospitalization” and “two days in
medical confinement under intense medical supervision”
(ECF No. 1 at 8). Immediately following the alleged incident
on August 5, 2019, Plaintiff was taken from Walton C.I. to
the Northwest Florida Reception Center for medical treatment
(ECF No. 1 at 9). He claims that as a result of the excessive
force, he had “extensive injury” to his left eye
(which required stitches), broken ribs, lacerations,
contusions, a concussion, and was “bleeding out of both
ears” (ECF No. 1 at 8-9).
to his discharge, he was transferred to the Santa Rosa
Correctional Institution (“Santa Rosa C.I.”)
until he was released to the Walton County Jail on February
22, 2019, where he remains (ECF No. 1 at 2, 9). He raises no
claims concerning the conditions of confinement at the Walton
County Jail, much less any claims which suggest imminent
danger. As Plaintiff's allegations of excessive force
center around the August 5, 2018, incident at Walton C.I.,
and he has since been transferred to a different institution,
his claims clearly relate to a past danger and thus are
insufficient to trigger the exception.
Plaintiff is subject to section 1915(g), he is not eligible
to proceed in forma pauperis. And, because Plaintiff did not
pay the full $400.00 filing fee at the time he initiated 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 Cir. 2001).
Dismissal without prejudice would permit the initiation of a
new cause of action accompanied by payment of the $400.00
filing fee in its entirety.
it is respectfully RECOMMENDED:
pursuant to 28 U.S.C. § 1915(g), this cause be
DISMISSED WITHOUT PREJUDICE to
Plaintiff's initiating a new cause of action accompanied
by payment of the $400.00 filing fee in its entirety.
TO THE PARTIES
to these proposed findings and recommendations must be filed
within fourteen (14) days after being served a copy thereof.
Any different deadline that may appear on the electronic
docket is for the court's internal use only, and does not
control. A copy of objections shall be served upon all other
parties. If a party fails to object to the magistrate
judge's findings or recommendations as to any particular
claim or issue contained in a report and recommendation, that
party waives the right to ...