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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. 5:10cv170/SPM/EMT

JOHN DOE, 

 Captain, Marianna Federal Prison, 

and

JOHN DOE,

 Warden, Marianna Federal Prison, 

Defendants.

ORDER, REPORT AND RECOMMENDATION

Plaintiff, an inmate at the Duval County Jail, initiated this action on June 14, 2010, by filing

a civil rights complaint pursuant to 42 U.S.C. § 1983 (Doc. 1 at 7).1 Because he had not filed either

the $350.00 filing fee or a motion to proceed in forma pauperis, he was directed to do so (Doc. 3). 

His motion for leave to so proceed is now pending before the court (Doc. 4). Upon review of

Plaintiff’s complaint, applicable statutes and controlling case law, as well as court records from this

court and the United States District Court for the Middle District of Florida, the court finds this

complaint is subject to summary dismissal.

Title 28 U.S.C. § 1915(g) prohibits a prisoner from proceeding in forma pauperis in civil

actions under certain circumstances. It provides: 

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action

or proceeding 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

1 The page references used in this Report reflect the page numbers as enumerated in the court’s electronic

docketing system rather than those Plaintiff may have assigned.
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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). Thus, if a prisoner has had three or more cases or appeals dismissed for one

of the recited reasons, he cannot proceed in forma pauperis. 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 his failure

to do so warrants dismissal without prejudice. Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir.

2002); Vanderberg v. Donaldson, 259 F.3d 1321, 1324 (11th Cir. 2001). The only exception to this

is if the prisoner alleges he is “under imminent danger of serious physical injury.” 28 U.S.C.

§ 1915(g); Brown v. Johnson, 387 F.3d 1344 (11th Cir. 2004). 

The court takes judicial notice of three cases previously filed by Plaintiff in the United States

District Court for the Middle District of Florida, which have been previously dismissed by the

district court as frivolous or for failing to state a claim upon which relief may be granted: Whisby

v. Duval County Jail, Case No. 3:09cv1178-MMH-MCR (dismissed on December 9, 2009, as

frivolous), Whisby v. Kuhn, Case No. 3:09cv1257-MMH-JRK (dismissed on December 28, 2009,

pursuant to 28 U.S.C. § 1915(e)(2)(B) generally), and Whisby v. Kuhn, Case No. 3:10cv152-HLAJRK (dismissed on February 26, 2010, as frivolous; appeal dismissed on June 10, 2010, for want of

prosecution).2

 Plaintiff was incarcerated at the time of filing each of those cases.

The only issue thus remaining before the court is whether Plaintiff is entitled to proceed in

forma pauperis under the “imminent danger of serious physical injury” exception to § 1915(g). 

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,

387 F.3d at 1350, “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

2 The inmate number of the plaintiff in the Middle District cases is the same as Plaintiff’s (#2009022787) (see

Doc. 1 at 1).

Case No: 5:10cv170/SPM/EMT
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(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). 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 (3d Cir. 2001).

In the instant case, the facts alleged by Plaintiff do not show that he is suffering any ongoing

physical injury, or that he is in imminent danger of serious physical injury. Plaintiff alleges that one

of the John Doe Defendants (who was employed by the Federal Correctional Institution in Marianna,

Florida, at the time of the events giving rise to this action) “committed or knows who committed the

act of using or practicing witchcraft on me, also known as a combine[d] form of voodoo, black

magic, wicca, etc. by casting numerous spells on the Plaintiff . . . . in June 2006 thru August 2006”

(Doc. 1 at 5). Plaintiff also apparently alleges that this Defendant harassed and threatened him (id.). 

During the time of the alleged violations of Plaintiff’s rights, Plaintiff further submits, “there was

no warden at the prison . . . .” (id. at 6). These allegations, which reference actions that occurred

at another institution approximately four years ago, do not suggest that Plaintiff is under imminent

danger of serious injury. Therefore, Plaintiff’s allegations are insufficient to satisfy the “imminent

danger” exception to § 1915(g)’s “three strikes” rule.

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 in forma pauperis, this case

Case No: 5:10cv170/SPM/EMT
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must be dismissed under § 1915(g). Plaintiff should not be provided an opportunity to pay the filing

fee; rather, dismissal is required if a “three striker” does not pay the filing fee at the time he submits

the complaint. See Dupree, 284 F.3d at 1236 (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.”). 

 Accordingly, it is ORDERED:

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

And it is respectfully RECOMMENDED:

That pursuant to 28 U.S.C. § 1915(g), this cause be DISMISSED WITHOUT PREJUDICE

to Plaintiff’s initiating a new cause of action accompanied by payment of the $350.00 filing fee in

its entirety.

At Pensacola, Florida, this 13th day of August 2010.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any 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. A copy of objections shall be

served upon all 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).

Case No: 5:10cv170/SPM/EMT