Opinion
4:20cv367-WS/HTC
09-28-2020
DAVID CHARLES SUSSMAN, Plaintiff, v. MARK S. INCH, Defendant.
ORDER OF DISMISSAL
Before the court is the magistrate judge's report and recommendation (ECF No. 7) docketed August 18, 2020. The magistrate judge recommends that Plaintiff's complaint and this case be dismissed without prejudice because Plaintiff (1) has three strikes under 28 U.S.C. § 1915(g), (2) has not shown he is under imminent danger of serious physical injury, and (3) has failed to pay the requisite filing fee upon initiating this suit.
Plaintiff has filed "Bare Bone Objections" (ECF No. 11) to the magistrate judge's report and recommendation. While he admits that he has filed at least three (3) cases that qualify as strikes under 28 U.S.C. § 1915(g), he maintains that the allegations in his complaint sufficiently show that he faces imminent danger of serious physical injury. Like the magistrate judge, the undersigned disagrees.
In his complaint, Plaintiff alleges that he was transferred to Florida State Prison ("FSP") on April 25, 2019, and was "brutally beaten" by FSP officers the next day. He filed his complaint in this case on July 23, 2020, approximately fifteen (15) months after the alleged brutal beating. There is nothing in his complaint to indicate that, at the time he filed suit in the summer of 2020, he was in jeopardy of ongoing danger of serious physical injury. See Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999) (noting that "an otherwise ineligible prisoner is only eligible to proceed IFP if he is in imminent danger [of serious physical injury] at the time of filing [suit]"). Plaintiff cannot rely on past conduct to establish imminent danger. Id.
Because Plaintiff has not paid the filing fee in this case, has had three (3) or more strikes under § 1915(g), and has not demonstrated that he was under imminent danger of serious physical injury when suit was filed, his case must be dismissed without prejudice, just as the magistrate judge has recommended.
Accordingly, it is ORDERED:
1. The magistrate judge's report and recommendation (ECF No. 7) is hereby ADOPTED and incorporated by reference into this order.
2. The plaintiff's complaint and this action are DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1915(g).
3. All pending motions are DENIED.
4. The clerk shall enter judgment stating: "This action is dismissed without prejudice pursuant to 28 U.S.C. § 1915(g)."
DONE AND ORDERED this 28th day of September, 2020.
s/ William Stafford
WILLIAM STAFFORD
SENIOR UNITED STATES DISTRICT JUDGE