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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

KELVIN BOWMAN,

 Plaintiff,

vs. Case No. 3:10cv278/LC/MD

R. MOORE, et al. 

 Defendants.

ORDER and

REPORT AND RECOMMENDATION

Plaintiff, an inmate in the custody of the Florida Department of Corrections

proceeding pro se, initiated this action on August 1, 2010 by filing a civil rights

complaint pursuant to 42 U.S.C. § 1983 (doc. 1), a motion to proceed in forma

pauperis (doc. 2) and a motion for appointment of counsel (doc. 3), all of which are

now pending before the court. Upon review of plaintiff’s complaint, applicable

statutes and controlling case law, as well as the clerk’s records, the court finds that

this case 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 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.
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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 his lawsuit, and his failure to do so warrants dismissal of

his case without prejudice. Dupree v. Palmer, 284 F.3d 1234, 1236 (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.”); Vanderberg v. Donaldson, 259 F.3d 1321, 1324

(11th Cir. 2001). The only exception is if the prisoner alleges he is “under imminent

danger of serious physical injury.” 28 U.S.C. §1915; Brown v. Johnson, 387 F.3d

1344 (11th Cir. 2004); Rivera v. Allin, 144 F.3d 719, 723 (11th Cir. 1998). 

In the instant case, the court takes judicial notice of the fact that as of the date

plaintiff filed this civil action, he had previously filed the following four cases in the

Northern District of Florida, all of which were dismissed for failure to state a claim:

Bowman v. Paul, Case No. 4:96cv525/RH, dismissed September 24, 1997;

Bowman v. Moore, Case No. 4:99cv217/WS, dismissed August 9, 2000;

Bowman v. Hamilton, Case No. 5:04cv408/SPM/MD, dismissed February 22,

2005; and

Bowman v. Hamilton, Case No. 3:03cv568/RV/EMT, dismissed November 22,

2005.

In addition, plaintiff’s appeal in Bowman v. Hamilton, Case No. 3:03cv568/RV/EMT,

was dismissed as frivolous on August 21, 2006. (Case 3:03cv568/RV/EMT, doc. 81). 

Plaintiff was incarcerated at the time he filed the listed cases, as Department

of Corrections’ records indicate he has been continuously incarcerated since 1991.1

Because he therefore has five qualifying “strikes,” he must pay the $350.00 filing fee

1

http://www.dc.state.fl.us/.

Case No: 3:10cv278/LC/MD
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in full before proceeding with this or any other civil action unless he is “under

imminent danger of serious physical injury.” 28 U.S.C. §1915, Brown; Rivera, supra. 

The present case is a suit against nine prison officials at Santa Rosa

Correctional Institution, plaintiff’s present place of confinement. Plaintiff claims the

defendants violated his constitutional rights on June 12, 2008 when they injected

him with psychotropic medication without his permission. He also claims they

violated his constitutional rights on March 17, 2010 when they confiscated legal

papers, grievances and other documents from his cell. Plaintiff seeks monetary

damages for these alleged violations. Plaintiff’s allegations, one of which references

an incident that occurred over two years ago, and the other which involves the

confiscation of documents, do not establish that plaintiff is under imminent danger

of serious physical injury.

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 must be dismissed under § 1915(g). Leave should not

be provided so that he can pay the fee; rather, dismissal is required. Dupree v.

Palmer, supra.

Accordingly, it is ORDERED:

1. Plaintiff’s motion for leave to proceed in forma pauperis (doc. 2) is DENIED. 

2. Plaintiff’s motion for appointment of counsel (doc. 3) 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

Case No: 3:10cv278/LC/MD
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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).

Case No: 3:10cv278/LC/MD