Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

KELVIN BOWMAN,

 Plaintiff,

vs. 3:10cv277/MCR/MD

D.ELLIS, 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 by filing a civil rights complaint pursuant to 42

U.S.C. § 1983, a motion to proceed in forma pauperis and a motion for appointment of

counsel which are now pending before the court. (Doc. 1, 2 ,& 3). Upon review of the

plaintiff’s complaint, applicable statutes and controlling case law, as well as the clerk’s

records, the court finds that this complaint 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.

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
Page 2 of 3

he initiates the suit, and his failure to do so warrants dismissal without prejudice. Dupree

v. Palmer, 284 F.3d 1234, 1236 (11 Cir. 2002); Vanderberg v. Donaldson, 259 F.3d 1321, th

1324 (11 Cir. 2001). The only exception to this is if the prisoner alleges he is “under th

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

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

The court may take judicial notice of the fact that following four cases filed in the

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

4:96cv525/RH Bowman v. Paul; dismissed September 24, 1997;

4:99cv217/WS Bowman v. Moore, et al.; dismissed August 9, 2000;

5:04cv408/SPM/MD Bowman v. Hamilton, et al.; dismissed February 22, 2005

3:03cv568/RV/EMT Bowman v. Hamilton; dismissed November 22, 2005

In addition, plaintiff’s appeal in Bowman v. Hamilton, case 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. Because he therefore 1

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

In this case, plaintiff who is currently incarcerated at the Santa Rosa Correctional

Institution (“SRCI”), sues thirteen correctional officers or other personnel at SRCI regarding

an incident that allegedly occurred on October 23, 2008. Plaintiff asserts that after he

consumed a meal containing a massive amount of psychotropic drugs, he was assaulted

by correctional officers who had conspired with members of various prison gangs to murder

him that night. (Doc. 1 at 5-6). Despite the seriousness of his injuries, he was taken by

prison transport rather than by ambulance to West Florida Hospital where he received

inadequate medical treatment. (Id. at 6). He asserts that the assault was precipitated by 

his filing of numerous grievances, and was also motivated by plaintiff’s race, nationality and

http://www.dc.state.fl.us/ActiveInmates/detail.asp?Bookmark=1&From=list&SessionID=48156406

1

Case No: 3:10cv277/MCR/MD
Page 3 of 3

religion. (Id. at 6-6A). Plaintiff seeks monetary damages for the violations of his rights

stemming from this incident. These allegations, which reference actions that occurred

nearly two years ago, do not establish that plaintiff is under imminent danger of serious

physical injury and do not entitle him to avoid the bar of § 1915(g) and proceed in forma

pauperis in this case. 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 (11 Cir. 2002); Vanderberg th

v. Donaldson, 259 F.3d 1321, 1324 (11 Cir. 2001). Therefore, this action should be th

dismissed without prejudice. Plaintiff may initiate a new civil rights action by filing a new

civil rights complaint form and paying the full $350.00 filing fee at the time he files the case.

Accordingly, it is ORDERED:

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

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

And it is respectfully RECOMMENDED:

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

the payment of the full $350.00 filing fee.

At Pensacola, Florida, this 4th day of August, 2010.

/s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

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 (11 Cir. 1988). th

Case No: 3:10cv277/MCR/MD