United States District Court, N.D. Florida, Tallahassee Division
REPORT AND RECOMMENDATION
THAI CANNON, UNITED STATES MAGISTRATE JUDGE.
John Henry Frederick initiated this action in July 2019 by
filing a civil rights complaint under 42 U.S.C. § 1983.
ECF Doc. 1. After reviewing Plaintiff's complaint and
litigation history, the undersigned concludes this case
should be dismissed under 28 U.S.C. § 1915(g) because
Plaintiff is barred from proceeding in forma
pauperis and failed to pay the filing fee upon
initiating this suit.
28 U.S.C. § 1915(g) prohibits a prisoner from proceeding
in forma pauperis under certain
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.
prisoner who is barred from proceeding in forma
pauperis must pay the filing fee at the time he
initiates his lawsuit, and his 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).
is a three-striker, as he has filed at least three (3)
federal cases that were dismissed for failure to state a
claim or as malicious. See Frederick v. Wakulla CI Med.
Admin. Dep't, No. 4:18cv408-RH-MJF, ECF Doc. 24
(N.D. Fla. June 12, 2019) (dismissed as malicious);
Frederick v. Wakulla Corr. Inst., No.
4:18cv482-WS-CJK, ECF Doc. 18 (N.D. Fla. Mar. 26, 2019)
(dismissed as malicious); Frederick v. Bondi, No.
6:18cv694-GAP-GJK, ECF Doc. 9 (M.D. Fla. June 25, 2018)
(dismissed for failure to state a claim); Frederick v.
Dalton, No. 6:17cv349-PGB-KRS, ECF Doc. 3 (M.D. Fla.
Mar. 10, 2017) (dismissed for failure to state a claim);
Frederick v. State of Fla. Judges, No.
6:17cv342-GKS- GJK ECF Doc. 4 (M.D. Fla. Mar. 8, 2017)
(dismissed for failure to state a claim).All these cases
bear Plaintiff's FDOC inmate number, R17753, and all the
qualifying dismissals were entered before Plaintiff filed
Plaintiff 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. Plaintiff's allegations do not make that
showing. Plaintiff is an inmate of the Florida Department of
Corrections currently confined at Wakulla Correctional
Institution. His complaint names a single Defendant, Nurse
Heather Kever, and describes interactions he had with Kever
in January and February of 2019. ECF Doc. 1 at 1-2. Plaintiff
alleges: (1) he was abused by Sergeant Chunn on November 17,
2018; (2) Dr. Acosta x-rayed Plaintiff's injuries and
told him nothing was wrong but gave him muscle rub, ibuprofen
and ordered a second x-ray; (3) Kever refused Plaintiff's
request to get a second opinion from an outside doctor; (4)
when Plaintiff visited sick call complaining of pain on
February 5, 2019, Kever told him not to come back and wrote
him a disciplinary report; and (5) Kever, along with Nurse
Kirkland, increased Plaintiff's no prolonged standing
pass from 15 to 30 minutes. Id.
the well-pleaded allegations of Plaintiff's complaint as
true, they fail to show that he is in imminent danger of
serious physical injury because they concern events that
happened in January and February of 2019. See 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)]”.).
Notably, Plaintiff does not seek injunctive relief to address
any perceived danger; he seeks only monetary damages. ECF
Doc. 1 at 1. Because Plaintiff is barred from proceeding
in forma pauperis and failed to pay the filing fee
at the time he filed this § 1983 action, this case
should be dismissed under § 1915(g).
it is RECOMMENDED:
1. That this case be DISMISSED WITHOUT PREJUDICE pursuant to
28 U.S.C. § 1915(g).
2. That the clerk close the file.
TO THE PARTIES
to these proposed findings and recommendations may be filed
within 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 the
Magistrate Judge and all other parties. A party failing to
object to a Magistrate Judge's findings or
recommendations contained in a report and recommendation in
accordance with the provisions of 28 U.S.C. § 636(b)(1)
waives the right to ...