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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

JAMES BERNARD CAMPBELL,

Plaintiff,

v. CASE NO. 5:11-cv-82-RS-GRJ

MR. ELLIS, et al.,

Defendants.

_____________________________/

REPORT AND RECOMMENDATION

Plaintiff James Bernard Campbell, Florida Department of Corrections inmate

number 804965, initiated this case by filing a pro se civil rights complaint pursuant to 42

U.S.C § 1983, and seeks leave to proceed as a pauper (Docs. 1 and 2). The complaint

stems from incidents that occurred while Plaintiff was incarcerated at Gulf Correctional

Institution in Wewahitchka, Florida. All of the named defendants are corrections

officers or prison officials at Gulf CI. Plaintiff alleges that the defendants retaliated

against him for filing grievances by issuing false disciplinary reports, destroying or

confiscating his property, and depriving him of personal hygiene items. Plaintiff alleges

that the defendants verbally threatened to spray him with chemical spray. Plaintiff is

presently confined at Santa Rosa CI, in Milton, Florida. Plaintiff concedes that he failed

to exhaust administrative remedies regarding his claims. Plaintiff further concedes that

he has accumulated “three strikes” pursuant to the Prison Litigation Reform Act’s threestrikes provision, 28 U.S.C § 1915(g). 
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A review of Plaintiff’s previous federal cases confirms that he is subject to the

three-strikes bar of 28 U.S.C. § 1915(g), having had three or more prior civil actions or

appeals dismissed on the grounds that they were frivolous, malicious, or failed to state

a claim upon which relief may be granted. Accordingly, Plaintiff is barred from 1

proceeding as a pauper in a civil action unless he is under “imminent danger of serious

physical injury.” 28 U.S.C. § 1915(g).

According to the Eleventh Circuit, the relevant inquiry is “whether [the] complaint,

as a whole, alleges imminent danger of serious physical injury.” Brown v. Johnson, 387

F.3d 1344, 1350 (11th Cir. 2004). General allegations that are not grounded in specific

facts which indicate that serious physical injury is imminent are not sufficient to invoke

the exception to § 1915(g). See Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003).

The 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 (10th Cir. 1998). A

claim by a prisoner that he faced a past imminent danger is insufficient to allow him to

proceed in forma pauperis pursuant to the imminent danger exception. Medberry v.

Butler, 185 F.3d 1189, 1193 (11th Cir. 1999) (holding that exception not triggered where

threat of assault by other prisoners ceased to exist when plaintiff was placed in

administrative confinement prior to filing of his complaint); see also Lewis v. Sullivan,

See, e.g., Campbell v. Crosby, Case No. 3:05-cv-669 (M.D. Fla. 8/23/05)

1

(imposing three-strikes bar and citing previous strikes incurred by Plaintiff). The Court

has independently confirmed Plaintiff’s strikes. 

Case No: 5:11-cv-82-RS-GRJ
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279 F.3d 526, 531 (7 Cir. 2002) (imminent danger exception is construed narrowly and

th

available only “for genuine emergencies,” where “time is pressing” and “a threat . . . is

real and proximate.”).

Plaintiff asserts that his life is now in imminent danger due to alleged “death

threats to murder” him with chemical spray in retaliation for committing the murder for

which he was convicted and for filing grievances while in prison. Plaintiff alleges that

chemical spray could kill him because he has asthma. Plaintiff also alleges that he

faces the threat of being “subjected to cruel and unusual punishment of physical pain

and mental anguish without legal justification.” Doc. 1 at 11.

Based upon a review of the complaint as a whole, the Court is not persuaded

that Plaintiff is in imminent danger of serious physical injury. Even if the Court accepts

as true Plaintiff’s allegation that officers at Gulf CI threatened to harm him with chemical

spray, he is no longer incarcerated at Gulf CI and therefore any risk of serious physical

injury posed by the alleged conduct of defendants no longer exists. The fact that

Plaintiff may have faced imminent danger sometime in the past is an insufficient basis

to allow him to proceed in forma pauperis pursuant to the imminent danger exception of

the three-strikes bar. See Medberry, 185 F.3d at 1193. Accordingly, the Court

concludes that Plaintiff is barred by the three-strikes provision of 28 U.S.C. § 1915(g)

from bringing this case as a pauper. 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

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so warrants dismissal without prejudice. Dupree v. Palmer, 284 F.3d 1234, 1236 (11th

Cir. 2002).

Accordingly, in light of the foregoing, it is respectfully RECOMMENDED:

1. That pursuant to 28 U.S.C § 1915(g), this case be DISMISSED WITHOUT

PREJUDICE.

2. That all pending motions be DENIED as moot.

IN CHAMBERS this 12 day of April 2011. 

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s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

 

NOTICE TO THE PARTIES

Pursuant to Fed. R. Civ. P. 72(b)(2), 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.

Case No: 5:11-cv-82-RS-GRJ