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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

JEFFREY A. COLE,

Plaintiff,

vs. Case No. 5:10cv73/SPM/EMT

WALTER McNEIL, et al.,

Defendants.

_____________________________/

REPORT AND RECOMMENDATION

Plaintiff, an inmate of the Florida penal system proceeding pro se, commenced this action

on April 2, 2010, by filing a civil rights complaint pursuant to 42 U.S.C. § 1983 (Doc. 1), and a 

motion for leave to proceed in forma pauperis (Doc. 2). 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, he had previously filed at least

three cases in the federal courts which were dismissed as frivolous, malicious, or for failure to state

a claim upon which relief may be granted: Cole v. Doe, Case No. 5:08cv138/RS/MD, a civil rights

case filed in the Northern District of Florida which was dismissed on June 9, 2008 as malicious;

Cole v. Warden, Case Number 8:07cv1798, a civil rights case filed in the Middle District of Florida

which

was dismissed on October 4, 2007 for failure to state a claim upon which relief may be granted; and

Cole v. Gary, Case Number 9:08cv80374, a civil rights case filed in the Southern District of Florida
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which was dismissed on September 11, 2008 for failure to state a claim upon which relief may be

granted. In addition, Plaintiff’s appeal in Cole v. Espinosa, Eleventh Circuit Court of Appeals’ Case

Number 02-14396 was dismissed as frivolous on December 30, 2002. Plaintiff was incarcerated at

the time of filing each of the foregoing actions. Each action was dismissed prior to Plaintiff’s filing

the instant complaint.

Plaintiff’s status as a “three-striker” was recognized in Cole v. Tifft, et al., Case No.

5:09cv260/RH/MD, a civil rights case filed in the Northern District of Florida which was dismissed

on October 23, 2009, pursuant to 28 U.S.C. § 1915(g). Thus, by the time Plaintiff brought the

instant action, he knew he had three strikes and could not proceed in forma pauperis.1

 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). 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. 

1

 Plaintiff attached the Report and Recommendation issued by Magistrate Judge Davis in Case No.

5:09cv260/RH/MD as an exhibit to the instant complaint (see Doc. 1, Ex. C). 

Case No.: 5:10cv73/SPM/EMT
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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 ongoing

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

complains that Norma Gilo, the chief health officer at Gulf Correctional Institution, failed to provide

adequate medical treatment when Plaintiff broke a rib in April of 2009 as a result of his

“misexecuting” a handstand in his cell (Doc. 1 at 7–10).2

 Plaintiff alleges Gilo ordered x-rays and

prescribed a support belt and Tylenol (id. at 8–9). He alleges Gilo ordered x-rays again in August

of 2009, and Plaintiff received a CAT scan in September of 2009, but Gilo falsely reported that she

interpreted the results as showing no fracture or displacement of Plaintiff’s rib (id. at 9). Plaintiff

acknowledges that his rib is now healed (id. at 10) but states the rib is still “significantly displaced”

and, therefore, poses “imminent serious physical injury danger” (id. at 9). While, arguably,

Plaintiff’s injury may have been serious when he incurred it in April of 2009, Plaintiff’s

acknowledgment that the alleged fracture was healed by the time he filed the instant complaint one

year later, in April of 2010, refutes his contention that the injury is ongoing or that serious physical

injury is imminent. Therefore, his 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

2

 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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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.”). 

Accordingly, it is respectfully RECOMMENDED:

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

§ 1915(g).

2. That all pending motions be DENIED AS MOOT.

3. That the clerk be directed to close the file.

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

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

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.: 5:10cv73/SPM/EMT