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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

SIDNEY MARTS,

Plaintiff,

vs. Case No. 4:10cv229-MP/WCS

WALTER McNEIL,

Defendant.

 /

REPORT AND RECOMMENDATION

Plaintiff, an inmate proceeding pro se, has filed a motion seeking leave to

proceed in forma pauperis. Doc. 5. I have reviewed Plaintiff's motion, as well as the

initial complaint, doc. 1, and Plaintiff's amended civil rights complaint under 42 U.S.C. §

1983. Doc. 4. Plaintiff is not entitled to proceed in forma pauperis. 

The Prison Litigation Reform Act of 1995 (PLRA), which was enacted on April

26, 1996, provides that a prisoner may not bring a civil action in forma pauperis

under 28 U.S.C. § 1915:

if the prisoner has, on 3 or more 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,
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Case No. 4:10cv229-MP/WCS

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). 

Plaintiff has had more than three prisoner actions dismissed in the Northern

District of Florida on the grounds that they were frivolous, malicious, or failed to state

a claim. The dismissed cases include case 3:08cv537-MCR/MD, which was

dismissed as malicious and as an abuse of the judicial process. That dismissal was

then appealed by Plaintiff, and the appeal was denied as frivolous. That case gave

Plaintiff two "strikes" under § 1915(g). Plaintiff also filed case 3:08cv24-RV/MD,

which was dismissed for failure to state a claim. Plaintiff again appealed that

dismissal, which the Eleventh Circuit Court of Appeals found to be frivolous. Those

two cases gave Plaintiff four dismissals under § 1915(g).

The amended complaint alleges a multitude of claims concerning the canteen,

inmate bank accounts, the commissary, and other claims. Plaintiff does not,

however, provide allegations showing that the is in imminent danger of serious

physical injury, nor could he as Plaintiff is not located within the vicinity of Defendant

McNeil, the Secretary of the Department of Corrections. Thus, Plaintiff's allegations

do not bring him within the "imminent danger" exception to § 1915(g). 

Because Plaintiff has had at least three prior dismissals and is not under

imminent danger of serious physical injury, his request to proceed in forma pauperis

should be denied and this action should be dismissed. The dismissal should be

without prejudice to him making the same allegations in a complaint for which he

pays the full $350.00 filing fee at the time of filing the complaint.
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Case No. 4:10cv229-MP/WCS

In light of the foregoing, it is respectfully RECOMMENDED that Plaintiff’s

motion to proceed in forma pauperis, doc. 5, be DENIED pursuant to 28 U.S.C. §

1915(g), that all other pending motions be DENIED, Plaintiff’s case be DISMISSED

without prejudice, and that the order adopting this report and recommendation direct

the Clerk of Court to note on the docket that this cause was dismissed pursuant to 28

U.S.C. § 1915(g).

IN CHAMBERS at Tallahassee, Florida, on July 20, 2010.

 s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 14 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 14 days

after being served with a copy thereof. Failure to file specific objections limits the

scope of review of proposed factual findings and recommendations.