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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

WINDSOR E. COOKS,

Plaintiff,

v. CASE NO. 4:11-cv-326-SPM-GRJ

FLORIDA DEPARTMENT 

OF CORRECTIONS, and

EDWIN BUSS,

Defendants.

_____________________________/

REPORT AND RECOMMENDATION

Plaintiff, proceeding pro se, has filed a Civil Rights complaint on the court’s

standard form against the Florida Department of Corrections (“FDOC”) and Edwin Buss,

the Secretary of the FDOC. (Doc. 1.) For the reasons discussed below, it is

respectfully RECOMMENDED that this cause be dismissed pursuant to 28 U.S.C. §

1915(g).

DISCUSSION

Plaintiff alleges he is unlawfully being detained because the FDOC lacks a

probable cause affidavit with respect to the crime for which he was convicted.

According to Plaintiff, under Florida law the FDOC is required to obtain a probable

cause affidavit in order to hold him in custody. Plaintiff alleges he has filed numerous

grievances regarding this claim with the FDOC. In response to these grievances the

FDOC has informed Plaintiff that Plaintiff is lawfully in custody because his commitment

paperwork has a state court judge’s signature on it. Plaintiff contends that because the

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FDOC does not have a probable cause affidavit his due process rights under both the

Fourteenth Amendment to the U.S. Constitution and Article I, Section 9 of the Florida

Constitution have been violated. Plaintiff also claims that the FDOC has committed

gross negligence in failing to adhere to its purported record-keeping duty. As relief

Plaintiff seeks an order of this Court requiring the Defendants to release Plaintiff from

FDOC custody and $1,000,000 in punitive damages for each year that he has been

incarcerated.

The Prison Litigation Reform Act of 1995 (“PLRA”) provides that a prisoner may

not bring a civil action under 28 U.S.C. § 1915:

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). This is commonly known as the PLRA’s “three strikes” rule. “A

prisoner under imminent danger of serious physical injury can qualify for the ‘imminent

danger exception,’” but the prisoner must allege a present imminent danger. Miller v.

Donald, 541 F.3d 1091, 1095 (11 Cir. 2008); Medberry v. Butler, 185 F.3d 1189, 1193 th

(11 Cir. 1999). th

Plaintiff has run afoul of 28 U.S.C. §1915(g) three strikes rule. Plaintiff

previously filed four cases in the Middle District of Florida, which were dismissed as

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

Cooks v. Lancaster, No. 3:01-cv-809-J-21TEM (M.D. Fla. July 23, 2001)(dismissed as

frivolous); Cooks v. Nelson, No. 3:07-cv-859-J-32TEM (M.D. Fla. Sept. 24, 2007)

(dismissed as frivolous); Cooks v. Nelson, No. 3:09-cv-1030-J-25MCR (M.D. Fla. Oct.

Case No: 4:11-cv-326-SPM-GRJ

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29, 2009)(dismissed as frivolous); Cooks v. Nelson, No. 3:09-cv-1078-J-25TEM (M.D.

Fla. Nov. 16, 2009)(dismissed as frivolous). In addition, Plaintiff should be well-aware

that he has four strikes because he has had two other civil rights cases dismissed in the

Middle District of Florida pursuant to the three strikes provision of 28 U.S.C. § 1915(g),

both of which explicitly informed Plaintiff that he had four strikes and named each

individual strike. See Cooks v. City Police Dep’t, No. 3:10-cv-165-J-32JRK (M.D. Fla.

Mar. 1, 2010); Cooks v. City Police Dep’t, No. 3:10-cv-684-J-12JRK (M.D. Fla. Aug. 11,

2010).

When Plaintiff filed the present case, he failed to pay the required $350 filing fee

or file a motion for leave to proceed in forma pauperis. The Court will not direct Plaintiff

to file a motion to proceed in forma pauperis, however, because Plaintiff is not entitled

to proceed as a pauper under 28 U.S.C. § 1915 and because his allegations do not

suggest that he is in “imminent danger of serious physical injury. Accordingly, Plaintiff’s

Complaint should be dismissed pursuant to 28 U.S.C. § 1915(g) because Plaintiff has

four strikes under the PLRA and because he does not allege that he is in any imminent

danger 

CONCLUSION

Based on the foregoing, it is respectfully RECOMMENDED that this case be

dismissed pursuant to 28 U.S.C. § 1915(g) because Plaintiff has four strikes

IN CHAMBERS, at Gainesville, Florida, this 12 day of July 2011.

th

s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

Case No: 4:11-cv-326-SPM-GRJ

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NOTICE TO THE PARTIES

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: 4:11-cv-326-SPM-GRJ

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