United States District Court, N.D. Florida, Pensacola Division
TIMOTHY L. GADSON, SR., Inmate No. E108439, Plaintiff,
SANTA ROSA CORRECTIONAL INSTITUTION, et al., Defendants.
REPORT AND RECOMMENDATION
ELIZABETH M. TIMOTHY CHIEF UNITED STATES MAGISTRATE JUDGE.
currently an inmate in the Florida Department of Corrections,
proceeding pro se, initiated this action by filing a civil
rights complaint under 42 U.S.C. § 1983 in the Southern
District of Florida (ECF No. 1). The case was later
transferred to this district, after which Plaintiff was, on
multiple occasions, given the opportunity to file an amended
complaint on the proper form and either submit the filing fee
or submit a properly completed motion to proceed in forma
pauperis (“IFP”) (ECF Nos. 13, 16, 21).
has now filed a complete motion to proceed IFP (ECF No. 23).
Also pending is a motion for injunctive relief (ECF No. 18).
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
[governing IFP proceedings] 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, malicious, or for
failing to state a claim upon which relief may be granted.
See Gadson v. Jones, No. 5:18cv45/MCR/GRJ
(N.D. Fla. June 25, 2018) (dismissing Plaintiff's
prisoner civil rights action as malicious); Gadson v.
Gerber, No. 9:18cv80209/DMM (S.D. Fla. June 5, 2018)
(dismissing Plaintiff's prisoner civil rights action for
failing to state a claim); Gadson v. Moore, No.
5:08cv107/RS/MD (N.D. Fla. July 3, 2008) (dismissing
Plaintiff's prisoner civil rights action for failing to
state a claim). 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, 108439. Id. All of the dismissals were
entered prior to December 14, 2018, the date Plaintiff filed
this lawsuit in the Southern District (ECF No. 1). Thus,
Plaintiff's status as a “three striker” is
prisoner with three strikes is precluded from proceeding IFP
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 be met, 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).
at the time Plaintiff initiated this action on December 14,
2018, he was confined at Apalachee Correctional Institution
(see ECF No. 1 at 1). The Defendants in this
complaint include correctional officers and other officials
at Santa Rosa Correctional Institution (“SRCI”),
only (id. at 1-2). Although Plaintiff's
allegations are somewhat difficult to decipher, he appears to
complain about the fact or circumstances of his underlying
conviction, as he references “a writ of habeas
corpus” (id. at 2). He also references
incidents involving damage to, or the taking of, his property
by SRCI officials, as well as an alleged use of force at SRCI
in August of 2018. He makes no discernable allegations
regarding future harm (id. at 1-3).
therefore clear that Plaintiff was not under imminent danger
of serious physical injury when he initiated this action. His
allegations relate to either his conviction or to actions
that occurred at SRCI before he was transferred to
Apalachee Correctional Institution, where he was imprisoned
when he filed this case. As discussed above, a claim by a
prisoner that he faced a past imminent danger is an
insufficient basis to allow him to proceed under the imminent
Plaintiff is subject to section 1915(g), he is not eligible
to proceed in forma pauperis. And, because Plaintiff did not
pay the $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
it is respectfully RECOMMENDED:
1. That 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 ...