United States District Court, N.D. Florida, Pensacola Division
MICHAEL C. WENK, FDOC No. D52128, Plaintiff,
LIEUTENANT D. DICE, et al., Defendants.
REPORT AND RECOMMENDATION
ELIZABETH M. TIMOTHY CHIEF UNITED STATES MAGISTRATE JUDGE
Michael C. Wenk (“Wenk”), an inmate of the
Florida Department of Corrections (“FDOC”),
commenced this civil rights case by filing a complaint under
42 U.S.C. § 1983 (ECF No. 1). Wenk also filed a motion
to proceed in forma pauperis (ECF No. 2).
case was referred to the undersigned for the issuance of all
preliminary orders and any recommendations to the district
court regarding dispositive matters. See N.D. Fla.
Loc. R. 72.2(C); see also 28 U.S.C. §
636(b)(1)(B), (C); Fed.R.Civ.P. 72(b). After careful
consideration of Wenk's litigation history and the
allegations of the Complaint, it is the opinion of the
undersigned that this case should be dismissed, without
prejudice, pursuant to 28 U.S.C. § 1915(g).
STATUTORY “THREE STRIKES” PROVISION
28 U.S.C. § 1915(g) prohibits a prisoner from proceeding
in forma pauperis under certain circumstances, as follows:
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). A prisoner who is no longer
entitled to proceed in forma pauperis must pay the filing fee
at the time he initiates his lawsuit, and his failure to do
so warrants dismissal of the 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 he is “under imminent danger of
serious physical injury.” 28 U.S.C. § 1915(g);
Brown v. Johnson, 387 F.3d 1344 (11th Cir. 2004).
identified four prior federal cases in the “Previous
Lawsuits” section of the Complaint:
• Wenk v. Hooper, et al., No.
3:19cv1991/LAC/EMT, filed in the Northern District of Florida
on July 9, 2019, and dismissed as malicious on August 19,
• Wenk v. Ocean City Dep't of Corr., No.
3:16cv2907/PGS/LHG, filed in the District of New Jersey on
May 23, 2016, and dismissed for failure to state a claim on
July 19, 2016;
• Wenk v. Cross, No. 3:12cv1908/MAS/TJB, filed
in the District of New Jersey;
• Wenk v. Lanigan, No. 3:12cv3143/MAS/TJB,
filed in the ...