United States District Court, N.D. Florida, Panama City Division
AARON C. PORTER, Plaintiff,
MARK INCH, et al., Defendants.
REPORT AND RECOMMENDATION
Michael J. Frank United States Magistrate Judge.
an inmate of the Florida Department of Corrections proceeding
pro se, initiated this action pursuant to 42 U.S.C.
§ 1983. (Doc. 1). Plaintiff did not pay the filing fee
and instead moved to proceed in forma pauperis.
(Doc. 3). Plaintiff concedes that he is subject to the
“three strikes” bar under 28 U.S.C. §
1915(g), but he contends that he is entitled to proceed
in forma pauperis because of the “imminent
danger” exception. Because Plaintiff has not shown that
the “imminent danger” exception applies, the
undersigned recommends that this case be dismissed pursuant
to 28 U.S.C. § 1915(g).
commenced this action by filing a complaint pursuant to 42
U.S.C. § 1983 against seven Defendants: (1) Mark Inch;
(2) M. Neal; (3) Classification Supervisor Carter; (4)
Sergeant Smith; (5) Officer Lemons; (6) Mrs. Deason; and (7)
John Doe. Plaintiff alleged that these Defendants violated
his Eighth and Fourteenth Amendment rights to be protected
from violence and sexual assault. (Doc. 1 at 17).
22, 2019, Plaintiff filed an amended complaint. (Doc. 9).
Plaintiff claims that, since at least 2016, he has been
sexually assaulted and attacked in various Florida prisons.
(Doc. 9 at 8-12). Plaintiff also claims that in July 2016,
“blood Gang Members” ordered a “hit”
on him. (Doc. 9 at 8). As relief, Plaintiff seeks $350,
000.00 against each Defendant in compensatory damages; $150,
000.00 against each Defendant as punitive damages; an
injunction that enjoins Defendants from housing sex offenders
with non sex offenders; and that Plaintiff be allowed to
choose where he is incarcerated. (Doc. 9 at 15).
complaint, amended complaint, and motion to proceed in
forma pauperis, Plaintiff acknowledges that he is
subject to the provisions in 28 U.S.C. § 1915(g)
prohibiting prisoners from proceeding in forma
pauperis if they have had three prior cases dismissed
for maliciousness, frivolity, maliciousness, or for failure
to state a claim. Plaintiff asserts, however, that the
“imminent danger” exception applies to his case.
Limitations Imposed by the Prison Litigation Reform Act
federal in forma pauperis statute, codified at 28
U.S.C. § 1915, “generally authorizes courts to
waive ordinary filing fees for an indigent litigant seeking
to bring a lawsuit.” Pinson v. Samuels, 761
F.3d 1, 4 (D.C. Cir. 2014) (citing 28 U.S.C. §
1915(a)(1)). In light of “widespread concerns that
inmates had been flooding the courts with meritless claims,
Congress enacted the Prison Litigation Reform Act
(PLRA).” Id. The PLRA of 1995, Pub. L. No.
104-134, 110 Stat. 1321 (1996), was enacted in “an
effort to stem the flood of prisoner lawsuits in federal
court.” Harris v. Garner, 216 F.3d 970, 972
(11th Cir. 2000) (en banc); Gibbs v. Cross, 160 F.3d
962, 966 (3d Cir. 1998) (“Congress [in enacting the
‘three strikes' provision] was clearly concerned
with continuing to afford in forma pauperis filing
status to inmates who had a history suggestive of abusing the
pursuit of that goal, 28 U.S.C. § 1915(g) prohibits a
prisoner from proceeding in forma pauperis if the
prisoner previously filed three or more actions that were
dismissed for frivolity, maliciousness, or for failure to
state a claim. See 28 U.S.C. § 1915(g). The
statute provides in relevant part:
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).
statute does not banish such litigants from the courthouse.
Rather, a prisoner who is no longer entitled to proceed
in forma pauperis simply must pay the filing fee at
the time he initiates his lawsuit. Ciarpaglini v.
Saini, 352 F.3d 328, 329 (7th Cir. 2003) (“This
does not mean he cannot proceed in any civil suit; it just
means he must pay a filing fee unless he meets the imminent
danger statutory exception.”). In other words, after
three meritless suits, a prisoner must pay the full filing
fee at the time he initiates his suit unless he demonstrates
that he is “under imminent danger of serious physical
injury.” Vanderberg v. Donaldson, 259 F.3d
1321, 1324 (11th Cir. 2001); Brown v. Johnson, 387
F.3d 1344, 1347 (11th Cir. 2004).
to pay the filing fee at the time a Plaintiff submits his
complaint warrants dismissal. 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
Plaintiff's Three Strikes and Extensive Litigation
Plaintiff previously has filed numerous actions in federal
courts and has ...