Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

MICHAEL BROWN, #041267,

Plaintiff,

vs. Case No.: 3:10cv343/LAC/EMT

SERGEANT THORTON, et al., 

Defendants.

_________________________________/

ORDER, REPORT AND RECOMMENDATION 

Plaintiff, a prisoner proceeding pro se, initiated this action on September 5, 2010, by filing

a civil rights complaint pursuant to 42 U.S.C. § 1983 (Doc. 1 at 7). Leave to proceed in forma

pauperis has been granted (Doc. 12). The court granted Plaintiff’s motion to proceed in forma

pauperis based only upon the monetary information supplied in the motion to proceed in forma

pauperis (Doc. 10); however, based upon further review of the file and of previous cases filed by

Plaintiff, the court deems it necessary to vacate its order and direct reimbursement of the initial

partial filing fee paid by Plaintiff.

Plaintiff names the following individuals as Defendants in this case, all of whom were

employed at the Santa Rosa Correctional Institution (“SRCI”) at the time of the events giving rise

to this action: Sergeant Thorton, Nurse Torino, and Nurse Donahue (Doc. 1 at 1, 2). Plaintiff

alleges that on April 18, 2009, he alerted Sergeant Thorton that the sink in his cell was overflowing

(id. at 5). Sergeant Thorton responded that he would take care of it (id.). Two days later, Plaintiff

again alerted Sergeant Thorton to the problem with his sink (id.). Thorton again responded that he

would take care of it (id.). Plaintiff states Sergeant Thorton knew that Plaintiff suffered from poor

circulation in his feet (id.). Plaintiff states this physical condition caused his feet to swell and

difficulty walking (id.). 
Page 2 of 5

On May 2, 2009, Plaintiff slipped and fell in the water in his cell (due to the overflowing

sink), which opened a deep gash in his right leg (id.). Five minutes later, an unidentified officer

observed Plaintiff lying on the floor of his cell, bleeding and in agony, and requested that the

medical department respond to the emergency (id.). Plaintiff continued to lie on the floor, bleeding

to the point that he felt faint, for approximately twenty (20) minutes (id. at 5–6). He was then taken

by wheelchair to the medical department (id. at 6). He heard Nurses Torino and Donahue state that

they did not respond to Plaintiff’s cell because they did not want to walk the distance (id.). Plaintiff

was transported to a hospital and received thirteen (13) stitches in his leg (id.).

Plaintiff claims that Sergeant Thorton’s failure to address the overflowing sink exposed him

to unsafe conditions of confinement, in violation of the Eighth Amendment (id. at 7). He contends

Nurses Torino and Donahue’s failure to respond to his cell constituted deliberate indifference to his

serious need for medical attention (id.). As relief, he seeks compensatory damages for pain and

suffering (id.).

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). Plaintiff has advised the court (see Doc. 1 at 3–5), and the court takes judicial

notice, of two actions previously filed by Plaintiff in this District while he was incarcerated, which

have been previously dismissed by the court as frivolous, malicious, or for failure to state a claim: 

Brown v. Thorton, Case No. 3:09cv396/RV/MD (N.D. Fla. Mar. 12, 2010) (dismissed for failure

to state a claim, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)), and Brown v. Thorton, Case No.

3:10cv175/RV/MD (N.D. Fla. July 27, 2010) (dismissed as malicious, pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(i)). Additionally, Plaintiff acknowledged that he filed an appeal with the Eleventh

Circuit Court of Appeals in Case No. 3:10cv175/RV/MD (see Doc. 1 at 4); and the docket reflects

Case No: 3:10cv343/LAC/EMT
Page 3 of 5

the Eleventh Circuit dismissed the appeal as frivolous on August 25, 2010 (see Brown v. Thorton,

Case No. 3:10cv175/RV/MD, Doc. 43).1

In the instant case, Plaintiff is clearly still a prisoner, and the instant civil rights action

concerns the conditions of his confinement. Furthermore, his three prior cases, identified supra,

qualify as “strikes” under § 1915(g). Therefore, the issue before the court is whether Plaintiff

qualifies under the “imminent danger of serious physical injury” exception and, therefore, 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 in forma pauperis 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 of 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”

1

 The inmate number of the plaintiff in each of those cases, #041267, is the same as Plaintiff’s.

Case No: 3:10cv343/LAC/EMT
Page 4 of 5

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, nor do they allege a likelihood of imminent serious physical injury. Even

if Defendants Torino and Donahue’s failure to immediately respond to Plaintiff’s need for medical

treatment created a risk of serious harm, the risk of serious physical injury ceased to exist when

Plaintiff was treated for the gash in his leg at the hospital the same day he fell. Furthermore, even

if Defendant Thorton’s alleged failure to correct the unsafe condition in Plaintiff’s cell created a risk

of serious harm, Plaintiff does not allege any facts showing he was still being exposed to that same

condition at the time he filed this lawsuit (over one year after the event occurred). Thus, even if

Plaintiff was exposed to a serious threat of injury in the past, this is insufficient to meet the imminent

danger exception to the statute. See Medberry, 185 F.3d at 1193. Because the facts do not suggest

that Plaintiff’s current conditions of confinement pose an imminent threat of serious physical injury,

he does not qualify under the imminent danger exception to § 1915(g). Accordingly, he may not

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 failure to do so warrants dismissal without

prejudice. Dupree v. Palmer, 284 F.3d 1234 (11th Cir. 2002); Vanderberg v. Donaldson, 259 F.3d

1321, 1324 (11th Cir. 2001).

Accordingly, it is ORDERED:

1. The court’s previous order (Doc. 12) granting Plaintiff’s motion to proceed in forma

pauperis (Doc. 10) is hereby VACATED.

2. Plaintiff’s motion to proceed in forma pauperis (Doc. 10) is DENIED.

3. The clerk of court shall mail a copy of this order to: Department of Corrections, 2601

Blairstone Road, Tallahassee, FL 32399-2500, Attention: Agency Clerk. The agency having

custody of Plaintiff shall no longer forward payments from Plaintiff’s account to the court for Case

No. 3:10cv343/LAC/EMT.

And it is respectfully RECOMMENDED:

Case No: 3:10cv343/LAC/EMT
Page 5 of 5

That Plaintiff’s case be dismissed without prejudice to its refiling accompanied by full

payment of the $350.00 filing fee.

At Pensacola, Florida, this 23rd day of December 2010.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed 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, 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).

Case No: 3:10cv343/LAC/EMT