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Wenk v. Dice

United States District Court, N.D. Florida, Pensacola Division

September 10, 2019

MICHAEL C. WENK, FDOC No. D52128, Plaintiff,
v.
LIEUTENANT D. DICE, et al., Defendants.

          REPORT AND RECOMMENDATION

          ELIZABETH M. TIMOTHY CHIEF UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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).

         This 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).

         I. STATUTORY “THREE STRIKES” PROVISION

         Title 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).

         II. DISCUSSION

         Wenk 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, 2019;
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 ...

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