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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

KELLY WHISBY 

 Plaintiff,

vs. Case No. 5:10cv176/MCR/MD

JOHN DOE 1, ASSOCIATE WARDEN

OF MARIANNA FEDERAL PRISON, et al.,

 Defendants.

ORDER and

REPORT AND RECOMMENDATION

Plaintiff, a pre-trial detainee confined at the Duval County Jail, commenced

this action on June 14, 2010 by filing a civil rights complaint pursuant to 42 U.S.C.

§ 1983. (Doc. 1). He has also filed a motion for leave to proceed in forma pauperis. 

(Doc. 4). For the reasons that follow, this case should be dismissed.

The in forma pauperis statute provides:

In no event shall a prisoner bring a civil action . . . 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). As of the date plaintiff filed this civil action,1

 he had previously

filed at least three cases in the United States District Court for the Middle District of

Florida that were dismissed as frivolous: Whisby v. Duval County Jail, Case No.

 1The date of filing of the complaint in this case is June 14, 2010, as indicated by plaintiff’s sworn

statement on the compliant form that the complaint was provided to prison officials for mailing on

June 14, 2010. (Doc. 1, p. 7 of complaint form and p. 10 in ECF).
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3:09cv1178, a civil rights case filed on December 3, 2009 and dismissed on

December 9, 2009; Whisby v. Kuhn, Case Number 3:09cv1257, a Federal Tort Claims

Act case filed on December 21, 2009 and dismissed on December 28, 2009; Whisby

v. Simmons, Case Number 3:10cv151, a Federal Tort Claims Act and Bivens2 case

filed on February 19, 2010 and dismissed on February 25, 2010; and Whisby v. Kuhn,

Case Number 3:10cv152, a civil rights case filed on February 19, 2010 and dismissed

on February 26, 2010. All of these cases may be positively identified as having been

filed by plaintiff because they bear his Duval County Jail inmate number 2009022787. 

Plaintiff was an inmate of the Duval County Jail at the time of filing each of the

foregoing actions. Each action was dismissed prior to plaintiff filing the instant

complaint.

Thus, by the time plaintiff brought this civil action, he knew he had three

strikes and could not proceed in forma pauperis. The issue before the court is

whether plaintiff qualifies under the “imminent danger of serious physical injury”

exception and, therefore, is entitled to proceed in forma pauperis. 

Circuit court cases have been helpful in determining what a prisoner with

three strikes must show in order to be allowed to proceed in forma pauperis. 

According to the Eleventh Circuit in Brown v. Johnson, 387 F.3d 1344, 1350 (11th Cir.

2004), “the issue is whether [the] complaint, as a whole, alleges imminent danger of

serious physical injury.” Accordingly, when determining whether a plaintiff has met

his burden of proving that he is in imminent danger of serious physical injury, the

court must look to the complaint, which must be construed liberally and the

allegations of which must be accepted as true. See id.; Jackson v. Reese, 608 F.2d

159, 160 (5th Cir. 1979); McAlphin v. Toney, 281 F.3d 709, 710 (8th Cir. 2002). 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). 

 2Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999,

29 L. Ed. 2d 619 (1971).

Case No: 5:10cv176/MCR/MD
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Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). The plaintiff must allege and

provide “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 an insufficient basis to allow him to proceed

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 his complaint); see also Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir.

2002) (holding that “imminent danger” exception to § 1915(g)’s “three strikes” rule

is construed narrowly and available only “for genuine emergencies,” where “time is

pressing” and “a threat . . . is real and proximate.”). Moreover, “imminent danger”

is assessed not at the time of the alleged incident, but rather at the time the

complaint is filed. See Abdul-Akbar v. McKelvie, 239 F.3d 307, 213 (3rd Cir. 2001). 

In the instant case, the facts alleged by plaintiff do not show that he is

suffering ongoing serious physical injury, or that he is in imminent danger of serious

physical injury. Plaintiff complains that on an unidentified date, the associate

warden of Marianna Federal Prison lured him out of his cell so that other correctional

officers could assault him. Plaintiff was then placed in a Special Housing Unit for

three months. These allegations do not suggest an imminent threat of serious

physical injury, because plaintiff is no longer confined at Marianna Federal

Correctional Institution.3

 

Because plaintiff did not pay the filing fee at the time he submitted this civil

rights action, and because it plainly appears that plaintiff is not entitled to proceed

 3Information on the Bureau of Prisons’ website indicates that plaintiff, whose Federal Inmate

Register Number is 17052-018, was released from BOP custody on October 15, 2007. See

http://www.bop.gov/iloc2/InmateFinderServlet?Transaction=IDSearch&needingMoreList=false&IDT

ype=IRN&IDNumber=17052-018&x=80&y=13. 

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in forma pauperis, this case must be dismissed under § 1915(g). Leave should not

be provided so that he can pay the fee; rather, dismissal is required if a “three

striker” does not pay the filing fee at the time he submits the complaint. Dupree v.

Palmer, 284 F.3d 1234 (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.”).4

Accordingly, it is ORDERED:

Plaintiff’s motion to proceed in forma pauperis (doc. 4) is DENIED.

And it is respectfully RECOMMENDED:

That this case be DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. §

1915(g), and the clerk be directed to close the file. 

At Pensacola, Florida this 5th day of August, 2010.

/s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed

within fourteen days after being served a copy hereof. 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 any objections shall be served upon any other parties. Failure to

object may limit the scope of appellate review of factual findings. See 28 U.S.C. §

636; United States v. Roberts, 858 F.2d 698, 701 (11th Cir. 1988).

 4Even if plaintiff was entitled to proceed in forma pauperis, this case would be subject to dismissal

as malicious, because plaintiff did not disclose Case Number 3:09cv1257, Case Number 3:09cv1178,

or Case Number 3:10cv151. (Doc. 1, p. 4 of complaint form and p. 6 in ECF). 

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Case No: 5:10cv176/MCR/MD