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Porter v. Inch

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

July 23, 2019

AARON C. PORTER, Plaintiff,
v.
MARK INCH, et al., Defendants.

          REPORT AND RECOMMENDATION

          Michael J. Frank United States Magistrate Judge.

         Plaintiff, 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).[1]

         I. Background

         Plaintiff 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).

         On July 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).

         In his 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.

         II. Discussion

         A. Limitations Imposed by the Prison Litigation Reform Act of 1995

         The 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 judicial system.”).

         In 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).

         This 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).

         Failure 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 suit”).

         B. Plaintiff's Three Strikes and Extensive Litigation History

          Plaintiff previously has filed numerous actions in federal courts and has ...


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