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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

DOUGLAS HAROLD LOWERY, II,

Plaintiff,

vs. Case No.: 3:11cv295/RV/CJK

WENDALL HALL, et al.,

Defendants.

____________________________________________________________

ORDER and

REPORT AND RECOMMENDATION

Plaintiff, an inmate proceeding pro se, commenced this action on June 22, 2011

by filing a civil rights complaint under 42 U.S.C. § 1983 (doc. 1) and a motion to

proceed in forma pauperis (doc. 4). He did not submit any money for the filing fee

at the time he submitted his complaint. Plaintiff claims the defendants violated his

Eighth Amendment rights when they issued plaintiff a styrofoam cup to drink out of

during breakfast, lunch, and dinner. (Doc. 1, p. 5). Plaintiff contends that styrofoam

cups greatly increase his risk of cancer, especially when these cups are holding hot

water. (Doc. 1, p. 5). The defendants, plaintiff notes, do not make any other types

of cup available. (Doc. 1, p. 5). On August 1, 2011 this court entered an order

granting plaintiff leave to proceed in forma pauperis (doc. 5). Upon review, this

court has discovered that three of plaintiff’s prison-generated lawsuits have been

dismissed by judges of the Northern District asfrivolous, malicious, or failing to state
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a claim upon which relief may be granted. This court’s previous order granting

plaintiff leave to proceed in forma pauperis will therefore be vacated and this case

dismissed under 28 U.S.C. § 1915(g).

Title 28 U.S.C. § 1915(g) prohibits a prisoner from proceeding in forma

pauperis under certain circumstances. Section 1915(g) provides: 

In no event shall a prisoner bring a civil action or appeal a

judgment in a civil action or proceeding under thissection 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.

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 (11th Cir. 2002) 

(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

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

imminent danger ofserious physical injury.” 28 U.S.C. § 1915(g); Brown v. Johnson,

387 F.3d 1344 (11th Cir. 2004). 

Judicial notice is taken that plaintiff has filed the following civil rights cases

in the United States District Court for the Northern District of Florida: 3:09cv514;

3:10cv308; 3:10cv457; 3:10cv204; and 3:10cv456. Plaintiff, while incarcerated, has

brought at least three civil actions in the federal courts that were dismissed as

frivolous, malicious, or for failure to state a claim upon which relief may be granted. 

See Lowery v. State of Florida, No. 3:09cv514 (N.D. Fla. 2009) (dismissing for

Case No: 3:11cv295/RV/CJK
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failure to state a claim a civil rights complaint filed by plaintiff while incarcerated);

Lowery v. Armor Medical, et al., No. 3:10cv204 (N.D. Fla. 2010) (dismissing as

malicious a civil rights complaint filed by plaintiff while incarcerated); Lowery v.

Coleman, No. 3:10cv456 (N.D. Fla. 2010) (dismissing for failure to state a claimcivil

rights complaint filed by plaintiff while incarcerated).

Accordingly, plaintiff may not litigate this case in forma pauperis unless he

demonstrates that he is “under imminent danger of serious physical injury.” 28

U.S.C. § 1915(g), Brown, supra. Plaintiff’s allegations that “[his] risk of cancer is

greatly increased[,]” do not bring himwithin the “imminent danger” exception. (Doc.

1, p. 5). Because he 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. 

Accordingly, it is ORDERED:

This court’s August 1, 2011 order granting plaintiff leave to proceed in forma

pauperis (doc. 5) is VACATED.

And it is respectfully RECOMMENDED:

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

§ 1915(g) and the clerk be directed to close the file. 

At Pensacola, Florida this 30th day of October, 2012.

/s/Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.

UNITEDSTATESMAGISTRATEJUDGE

Case No: 3:11cv295/RV/CJK
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NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

fourteen (14) 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 (11th Cir. 1988).

Case No: 3:11cv295/RV/CJK