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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

LOUIS ROBENSON,

 Plaintiff,

vs. 3:09cv365/RV/MD

DAVID 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 pleading entitled “Petition for Injunction

for protection against Domest (sic) Violence, Repeat Violence and Sexual Violence

Pursuant to Rule 65 Fed.R.Civ.Proc.,” a supplemental affidavit, a memorandum of

laws/rules and a motion for leave to proceed in forma pauperis (doc. 1, 2, 3, & 4). Plaintiff

was directed to file a complaint on the proper court form, and ruling on plaintiff’s in forma

pauperis motion was deferred until the court could review his complaint in light of his status

as a “three-striker” under 28 U.S.C. § 1915(g). Plaintiff has now filed his complaint, along

with a petition “for remove of 3-Strik (sic) sanction,” which was denied by separate order.

As plaintiff is aware, 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 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 that plaintiff was recognized as a “three-striker” 

and was denied leave to proceed in forma pauperis for this reason in case 

4:08cv562/RH/WCS. Plaintiff must therefore 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

complains of wrongs dating back to 1996

Plaintiff Robenson was sentenced to a term of life imprisonment in 1995 and

remanded to the custody of the Department of Corrections in August of that year. He is

currently incarcerated at the Santa Rosa Annex in Close Custody, although the complaint

indicates that he has been housed in other facilities including Jackson, Washington,

Okeechobee, and Charlotte Correctional Institutions as well as the Florida State Prison

since that date. Plaintiff complains of myriad events dating back to 1996. He claims that

family members attempting to visit him were turned away and that prison officials tampered

with their vehicle in an apparent attempt to cause an accident. He claims that both

incoming and outgoing mail was not properly delivered. He asserts that he was the victim

of 2 brutal beatings and a sexual assault in March of 2008, that false disciplinary reports

were written against him, that cases he filed in state court were improperly dismissed, that

he has been forced to take psychotropic drugs against his will, including by means of a

stomach tube, that corrections officials forced inmates to stab one of their own over 18

times in June of this year. Plaintiff asserts that he was sprayed continuously with chemical

Case No: 3:09cv365/RV/MD
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agents for over 30 minutes in June of 2007 and that in July of 2007, psychotropic drugs

were administered via injection, and he was left in a cold cell with no clothing or bedding

for an unspecified amount of time. Plaintiff contends that he has filed several successful

complaints or petitions in state and federal courts, which agitates and incites the

defendants “to rage more domestice (sic) violence repeat violence and sexual violence”

against him. Plaintiff seeks damages for physical injuries, losses and damages along with

damages for psychological suffering and punitive damages. 

Plaintiff’s allegations do not show that he is in imminent danger of serious bodily

injury from the named defendants. Of the twelve named defendants, all of whom are DOC

employees, only one, Warden David Ellis, works at Santa Rosa Correctional Institution,

where plaintiff is currently incarcerated. There are no allegations against Warden Ellis

specifically, and thus there are certainly none that would support a finding that plaintiff is

in imminent danger of serious bodily injury. Plaintiff’s allegations with respect to the other

defendants clearly seek only to redress past harm. His claims of misconduct on the part

of correctional officers and officials, even if true, do not entitle him to proceed in forma

pauperis in this case. 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 (11 Cir. 1999). Likewise, th

plaintiff’s transfer from the institution where the majority of the named defendants were

employed would moot any claims for injunctive relief against these defendants. Smith v.

Allen, 502 F.3d 1255, 1267 (11 Cir. 2007) (generally, transfer or a release of a prisoner

th

from prison will moot that prisoner's claims for injunctive and declaratory relief; prisoner’s

release and return to prison meant claim was not moot); Zatler v.Wainwright, 802 F.2d 397,

399 (11 Cir. 1986) (inmate’s release from prison mooted claim for declaratory and th

injunctive relief); Tucker v. Phyfer, 819 F.2d 1030, 1035 (11 Cir. 1987)(claim of prisoner

th

seeking declaratory relief regarding conditions in which he was held as a juvenile became

moot when he reached the age of majority); Wahl v. McIver, 773 F.2d 1169, 1173 (11 Cir. th

1985) (per curiam) (a prisoner’s past exposure to sub-par conditions in a prison “does not

constitute a present case or controversy involving injunctive relief”)

Case No: 3:09cv365/RV/MD
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The law is clear that 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); th

Vanderberg v. Donaldson, 259 F.3d 1321, 1324 (11 Cir. 2001). Therefore, based on the th

foregoing, this action should be 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.

Accordingly, it is ORDERED:

Plaintiff’s motion for leave to proceed in forma pauperis (doc. 4) is DENIED. 

And it is respectfully RECOMMENDED:

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

the payment of the full $350.00 filing fee.

At Pensacola, Florida, this 23 day of September, 2009.

rd

 /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 ten 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: 3:09cv365/RV/MD