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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

OTIS BLAXTON,

Plaintiff,

vs. Case No. 3:10cv90/MCR/EMT

TRINITY SERVICE GROUPS, et al.,

Defendants.

_______________________________/

REPORT AND RECOMMENDATION

Plaintiff, an inmate of the Florida penal system proceeding pro se, initiated this 42 U.S.C.

§ 1983 action by filing a complaint on March 16, 2010 (Doc. 1).

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

District Court for the Northern District of Florida, Case Nos. 4:08cv350/WS/WCS and

4:08cv351/SPM/AK, and one in the United States District Court for the Middle District of Florida,

Case No. 8:09cv1699/VMC/TBM. Each of these cases was dismissed by the district court as

frivolous and/or for failure to state a claim upon which relief may be granted; additionally, the

Eleventh Circuit found that the appeal in Case No. 4:08cv350/WS/WCS was frivolous. Plaintiff was

incarcerated at the time of filing each of these cases in the district court or on appeal. 

Pursuant to the “three strikes” provision of the Prison Litigation Reform Act:

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 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). Under this section, four strikes have been assessed against Plaintiff: one each

in Case No. 4:08cv351/SPM/AK and Case No. 8:09cv1699/VMC/TBM and two in Case No.

4:08cv350/WS/WCS. 

In the instant complaint, Plaintiff appears to claim that the daily “subsistence” fee charged

to inmates incarcerated in the Escambia County Jail, where he was held in 2006 and again in 2007,
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is excessive. Plaintiff also appears to claim that $200.00 was deposited into his inmate bank account

while he was housed at the Jail but that, despite his repeated requests, he never received the $10.00

balance in the account after he was transferred (Doc. 1 at 11). As relief, Plaintiff seeks

$2,275,680.00 in damages (id. at 12). 

This court concludes that Plaintiff has failed to meet the imminent injury requirement of

section 1915(g), as he alleges no facts suggesting he is under imminent danger of serious physical

injury. Because Plaintiff did not pay the $350.00 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 should be dismissed. Leave should not be provided to allow him to 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). Dismissal should be without

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

filing fee in its entirety.

 Accordingly, 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 12th day of April 2010.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

Case No: 3:10cv90/MCR/EMT
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NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations may 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 the magistrate judge and 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: 3:10cv90/MCR/EMT