Opinion
Civil Action 5:23-cv-00315-TES-CHW
12-13-2023
MARCUS ANTHONY TERRELL, Plaintiff, v. WARDEN SEALS, et al., Defendants.
ORDER ADOPTING THE UNITED STATES MAGISTRATE JUDGE'S RECOMMENDATION OF DISMISSAL
TILMAN E. SELF, III, JUDGE UNITED STATES DISTRICT COURT
The United States Magistrate Judge issued a Recommendation of Dismissal [Doc. 8] on November 2, 2023. The magistrate judge recommended that the Court deny Plaintiff Marcus Anthony Terrell's Motion for Leave to Proceed in Forma Pauperis (“IFP”) [Doc. 3], dismiss the claims asserted in Plaintiff's Complaint [Doc. 1] without prejudice, and deny Plaintiff's pending Motion for Preliminary Injunction [Doc. 5] as moot. [Doc. 8, pp. 1, 4-5]. After receiving an extension of time to do so, Plaintiff filed a timely Objection [Doc. 11] on December 8, 2023. See [Doc. 9]; [Doc. 10]. Therefore, the Court reviews de novo “those portions of the [Recommendation] to which” Plaintiff objected and reviewed all other portions for clear error. 28 U.S.C. § 636(b)(1).
After a thorough review of Plaintiff's Objection, the Court finds that it lacks merit. See [Doc. 11]. First, Plaintiff objects to the magistrate judge's recommendation to deny his motion for leave to proceed IFP, arguing that he “could not be considered not to be indigent.” [Id. at p. 1 (emphasis added)]. However, the magistrate judge concluded that Plaintiff is barred from proceeding IFP by the “three strikes rule” of 28 U.S.C. § 1915(g), and so Plaintiff's financial status is irrelevant. [Doc. 8, pp. 2-5].
Next, Plaintiff objects to the magistrate judge's finding “that this case should be subject to the three strikes rule,” arguing that he is in “imminent danger of serious physical injury.” [Doc. 11, pp. 1-2]. According to Plaintiff, prison officials repeatedly assaulted him, threatened him, spread rumors about him, and provided him with subpar medical treatment. See [Doc. 1, pp. 5, 7-9, 11]. But, to the extent that Plaintiff attempts to allege specific facts to avail himself of the imminent danger exception to the three strikes rule, his allegations simply do not “demonstrate an imminent danger of serious physical injury.” See Sutton v. Dist. Att'y's Off., 334 Fed.Appx. 278, 279 (11th Cir. 2009) (per curiam).
Therefore, the Court ADOPTS the United States Magistrate Judge's Recommendation of Dismissal [Doc. 8] and MAKES IT THE ORDER OF THE COURT. Accordingly, the Court DENIES Plaintiff's Motion for Leave to Proceed in Forma Pauperis [Doc. 3], DISMISSES Plaintiff's Complaint [Doc. 1] without prejudice under the three strikes rule, and DENIES as moot Plaintiff's pending Motion for Preliminary Injunction [Doc. 5].
“[T]he proper procedure is for the district court to dismiss the complaint without prejudice when it denies [a] prisoner leave to proceed in forma pauperis pursuant to the three strikes provision of [28 U.S.C.] § 1915(g). The prisoner cannot simply pay the filing fee after being denied in forma pauperis status. He must pay the filing fee at the time he initiates the suit.” Dupree v. Palmer, 284 F.3d 1234 (11th Cir. 2002).
SO ORDERED,