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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

SIDNEY MARTS,

 Plaintiff,

vs. Case No. 3:10cv450/MCR/MD

ELIZABETH M. TIMOTHY, 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 November 1, 2010 by filing a civil rights

complaint pursuant to 42 U.S.C. § 1983. (Doc. 1). He has now filed an amended

complaint (doc. 10), a motion to proceed in forma pauperis (doc. 11) and a motion

for preliminary injunction (doc. 12). Upon review of plaintiff’s original and amended

complaints, 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 (11 Cir. 2002) th

(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

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

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

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 cases in this court

that were dismissed as frivolous, malicious, or for failure to state a claim upon

which relief may be granted:

Marts v. McNesby, Case No. 3:08cv24/RV/MD, dismissed April 10, 2008 for

failure to state a claim;

Marts v. Chance, Case No. 3:08cv537/CR/MD, dismissed January 28, 2009 as

malicious;

In addition, plaintiff’s appeal in Marts v. McNesby, Case No. 3:08cv24/RV/MD,

was dismissed as frivolous on July 31, 2008. (Case 3:08cv24/RV/MD, doc. 44; see

also Eleventh Circuit Court of Appeal’s Case No. 08-12101-B). Plaintiff’s appeal in

Marts v. Chance, Case No. 3:08cv537/MCR/MD, was dismissed as frivolous on April

23, 2009. (Case 3:08cv537/MCR/MD, doc. 50; see also Eleventh Circuit Court of

Appeal’s Case Number 09-10648-H). Finally, a mandamus action filed by plaintiff in

the Eleventh Circuit, In Re: Sidney Marts, Case Number 09-11274-J, was dismissed

as frivolous on June 3, 2009. (Case 3:08cv537/MCR/MD, doc. 51; see also Eleventh

Circuit Court of Appeal’s Case Number 09-11274-J). The Eleventh Circuit’s order of

Case No: 3:10cv450/MCR/MD
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dismissal in the mandamus case declared plaintiff a “three-striker” pursuant to 28

U.S.C. § 1915(g). (Id.).

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. As a

“three-striker,” plaintiff was therefore required to pay the $350.00 filing fee in full at

the time he initiated this lawsuit, unless his allegations show that he is “under

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

supra.

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, “the issue is whether [the] complaint,

as a whole, alleges imminent danger of serious physical injury.” Id., 387 F.3d at

1350. The court must construe plaintiff’s pro se complaint liberally and accept all

well-pleaded factual allegations as true. See id.; McAlphin v. Toney, 281 F.3d 709,

710 (8 Cir. 2002). General allegations that are not grounded in specific facts which th

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 (8 Cir. 2003). The th

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

(10 Cir. 1998). “Imminent danger” is assessed at the time the complaint is filed. th

See Abdul-Akbar v. McKelvie, 239 F.3d 307, 213 (3 Cir. 2001). A claim by a prisoner rd

that he faced a past imminent danger is an insufficient basis to allow him to proceed

pursuant to the imminent danger exception. Medberry v. Butler, 185 F.3d 1189, 1193

(11 Cir. 1999) (holding that exception not triggered where threat of assault by other th

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 (7 Cir. th

Case No: 3:10cv450/MCR/MD
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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.”). 

In the instant case, plaintiff is suing various state and federal judges, an

assistant attorney general for the State of Florida, the Secretary of the Florida

Department of Corrections, and twelve John Does, claiming that these officials have

conspired to keep him imprisoned “in a hostile penal environment” under a

constitutionally invalid criminal conviction. (Docs. 1, 10). Plaintiff’s allegations do

not show that he is in 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:

Plaintiff’s motion for leave to proceed in forma pauperis (doc. 11) is DENIED. 

And it is respectfully RECOMMENDED:

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

§ 1915(g).

2. That plaintiff’s motion for preliminary injunction (doc. 12) and all other

pending motions be DENIED as moot.

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

At Pensacola, Florida, this 20 day of December, 2010. th

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

Case No: 3:10cv450/MCR/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 (11 Cir. 1988). th

Case No: 3:10cv450/MCR/MD