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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

WILLIAM T. HOLLIDAY, 

D.O.C. # P-27800,

Plaintiff,

vs. Case No. 4:10cv264-WS/WCS

WARDEN TOMLINSON,

Defendant.

 /

REPORT AND RECOMMENDATION

Plaintiff, an inmate proceeding pro se, filed a civil rights complaint under 42

U.S.C. § 1983. Doc. 1. Plaintiff neither paid the filing fee nor submitted an in forma

pauperis motion. Indeed, there is no need to file an in forma pauperis motion because

Plaintiff is not entitled to proceed in forma pauperis in federal court as a result of 28

U.S.C. § 1915(g). 

Plaintiff previously filed case 4:09cv182-SPM/WCS in this Court. I prepared an

report and recommendation, doc. 21, in that case recommending it be dismissed for

failure to state a claim. That report and recommendation is still pending as of this date. 

Nevertheless, the report and recommendation, doc. 21, listed Plaintiff's prior cases
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Case No. 4:10cv264-WS/WCS

finding that case 3:05cv312 was dismissed in this District for failure to state a claim

under § 1915(e)(2)(B)(ii). Plaintiff's appeal of that dismissal was found to be frivolous by

the Eleventh Circuit, counting as his second strike under § 1915(g). Furthermore,

Plaintiff litigated a case in the Eastern District of Michigan, 2:09cv12758, which was

dismissed sua sponte under § 1915(e)(2)(B) as frivolous and for failing to state a claim. 

That is Plaintiff's third strike. It is likely that the report and recommendation entered in

case 4:09cv182 will be adopted, counting as Plaintiff's fourth strike, and third such

dismissal in the Northern District of Florida.

In this complaint, Plaintiff fails to provide any factual allegations of wrong-doing

against the Defendant, and states only that he has been seeking a transfer. Doc. 1. 

Presumably, Plaintiff's complaint is related to the order of dismissal he attached to the

brief, one-paragraph complaint showing that his state court case, 2010 CA 001551, was

dismissed on June 15, 2010. This Court is not an appellate court and cannot review a

dismissal from a state court. Moreover, as the complaint presents no factual allegations

of any harm to Plaintiff or actions taken by the Defendant against Plaintiff, it fails to

demonstrate that Plaintiff should be permitted to proceed in this case under the

exception provisions of § 1915(g). Plaintiff has not shown that he is "under imminent

danger of serious physical injury" and, therefore, this case should be dismissed sua

sponte. 

Because Plaintiff has had at least three prior dismissals and is not under

imminent danger of serious physical injury, this action should be dismissed. The

dismissal should be without prejudice to him making the same allegations in a complaint

for which he pays the full $350.00 filing fee at the time of filing the complaint.
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Case No. 4:10cv264-WS/WCS

In light of the foregoing, it is respectfully RECOMMENDED that Plaintiff’s

complaint, doc. 1, be DISMISSED without prejudice, because Plaintiff is not entitled to

proceed without payment of the filing fee pursuant to 28 U.S.C. § 1915(g).

IN CHAMBERS at Tallahassee, Florida, on June 30, 2010.

 s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 14 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 14 days

after being served with a copy thereof. Failure to file specific objections limits the

scope of review of proposed factual findings and recommendations.