Opinion
CASE NO. 4:16-cv-148-WS-GRJ
03-25-2016
GERRY PARISH, a/k/a GARY PARISH, Plaintiff, v. WILLIAM DAVIS, et al., Defendants.
REPORT AND RECOMMENDATION
Plaintiff, an inmate in the custody of the Florida Department of Corrections presently confined at Century CI, initiated this case by filing a pro se complaint and seeks leave to proceed as a pauper. ECF Nos. 1, 2. The Complaint alleges that Plaintiff's constitutional rights were violated when he was confined at Liberty CI. Specifically, Plaintiff alleges that his First Amendment rights were violated because officers at Liberty CI retaliated against him in various ways for filing grievances. ECF No. 1. For the reasons discussed below, it is respectfully RECOMMENDED that this case should be dismissed pursuant to the 28 U.S.C. § 1915(g) three-strikes bar.
The Prison Litigation Reform Act of 1995 ("PLRA") provides that a prisoner may not bring a civil action under 28 U.S.C. § 1915 (the in forma pauperis statute):
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 is commonly known as the PLRA's "three strikes" rule. "A prisoner under imminent danger of serious physical injury can qualify for the 'imminent danger exception,'" but the prisoner must allege a present imminent danger. Miller v. Donald, 541 F.3d 1091, 1095 (11 Cir. 2008); Medberry v. Butler, 185 F.3d 1189, 1193 (11 Cir. 1999).
Plaintiff has run afoul of 28 U.S.C. §1915(g) three strikes rule. Plaintiff previously filed at least three cases or appeals which were dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted. See Parish v. Thompson, Case No. 3:04-cv-9'11-J-20TEM, ECF No. 10 (M.D. Fla. 9/20/04) (dismissing case pursuant to the three strikes bar and recounting cases that qualify as "strikes"). The Court has confirmed that the Plaintiff in this case and in the prior cases qualifying as strikes is the same, having DOC inmate number No. 700017.
Further, Plaintiff wholly failed in the complaint, which he executed under penalty of perjury, to truthfully disclose his status as a three-striker. Plaintiff responded "no" to the question "have you ever had any action in Federal court dismissed as frivolous, malicious, failing to state a claim, or prior to service," and failed to identify any such cases. See ECF No. 1 at 5.
Because Plaintiff is subject to the three-strikes bar, he is barred from proceeding as a pauper in a civil action unless he is under "imminent danger of serious physical injury." 28 U.S.C. § 1915(g). The relevant inquiry is "whether [the] complaint, as a whole, alleges imminent danger of serious physical injury." Brown v. Johnson, 387 F.3d 1344, 1350 (11th Cir. 2004). General allegations that are not grounded in specific facts which indicate that serious physical injury is imminent are not sufficient to invoke the exception to § 1915(g). See Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). The Plaintiff must make "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 insufficient 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 not triggered where threat of assault by other prisoners ceased to exist when plaintiff was placed in administrative confinement prior to filing of his complaint); see also Lewis v. Sullivan, 279 F.3d 526, 531 (7 Cir. 2002) (imminent danger exception is construed narrowly and available only "for genuine emergencies," where "time is pressing" and "a threat . . . is real and proximate.").
Plaintiff's allegations in the instant Complaint do not suggest that he can satisfy the "imminent danger" exception to the three-strikes bar. His claims pertain to past events that occurred while he was confined at Liberty CI. Accordingly, the Court concludes that Plaintiff is barred by the three-strikes provision of 28 U.S.C. § 1915(g) from bringing this case as a pauper. A prisoner who is no longer entitled to proceed in forma pauperis must pay the filing fee at the time he initiates the suit, and failure to do so warrants dismissal without prejudice. Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002).
It is therefore respectfully RECOMMENDED that this case should be dismissed without prejudice pursuant to the 28 U.S.C. § 1915(g) three-strikes bar.
IN CHAMBERS, at Gainesville, Florida, this 25 day of March 2016.
/s/_________
GARY R. JONES
United States Magistrate Judge
NOTICE TO THE PARTIES
Objections to these proposed findings and recommendations must be filed within fourteen (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 all other parties. If a party fails to object to the magistrate judge's findings or recommendations as to any particular claim or issue contained in a report and recommendation, that party waives the right to challenge on appeal the district court's order based on the unobjected-to factual and legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636.