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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

MICHAEL JEROME LITTLES (#047123),

a/k/a MICHAEL JEROME LITTLE,

a/k/a MICHAEL LITTLE, 

Plaintiff,

vs. Case No. 3:11cv265/RV/EMT

EDWIN BUSS,

Defendant.

________________________________/

ORDER, REPORT AND RECOMMENDATION

Plaintiff, an inmate in the Florida Department of Corrections (“FDOC”) proceeding pro se,

initiated this action on May 9, 2011, by filing a civil rights complaint in the United States District

Court for the Middle District of Florida, Case No. 8:11cv01015, alleging retaliation by correctional

officers (doc. 1). The Middle District transferred the case to this District (doc. 4). The matter of the

filing fee had not been addressed; therefore, this court issued an order instructing Plaintiff to pay the

filing fee or submit a fully completed motion to proceed in forma pauperis (doc. 6). Plaintiff has

now filed a motion to proceed in forma pauperis (doc. 7). 

Plaintiff names Edwin Buss, Secretary of the FDOC, as the sole Defendant in this action

(doc. 1). He alleges correctional officers and an inmate law clerk at Santa Rosa Correctional

Institution (“SRCI”) stole his legal documents by failing to return them to his after he sent them to

the inmate law clerk for processing (id.). He states the officers then applied chemical agent when

he complained about it (id.). He states his documents were returned to him after his attorney became

involved (id.). Plaintiff alleges the same thing occurred on April 12, 2011, when Officer Shell took

his legal documents to deliver to the inmate law clerk, but the law clerk never returned them (id.). 

Plaintiff additionally states Sergeant Stokes, Officer Kilgor, and Officer Kosonavich kicked his cell

door in an effort to provoke him, so they would have a reason to “gas” him or place him on strip cell

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status (id.). Plaintiff requests an injunction enjoining Sergeant Quinn, Officer Kilgor, Officer

Kosonavich, Sergeant Germain, Sergeant Stokes, and Officer Roberts from having contact with him

(id.).

Pursuant to the “three strikes” provision of the Prison Litigation Reform Act:

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.

28 U.S.C. § 1915(g). 

The court takes judicial notice of one case previously filed by Plaintiff in the United States

District Court for the Middle District of Florida, Little v. Carter, Case No. 3:03cv25/TJC, which was

dismissed by the district court on March 24, 2003, for failing to state a claim upon which relief may

be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Additionally, Plaintiff previously filed two

cases in the Northern District, Little v. Ellis, Case No. 3:07cv464/MCR/MD and Little v. R. Tift,

Case No. 3:10cv117/MCR/EMT, both of which were previously dismissed by the district court as

malicious, pursuant to § 1915(e)(2)(B)(i). Plaintiff was incarcerated at the time of filing each of

those cases.1

In the instant case, Plaintiff is clearly still a prisoner, and the instant civil rights action

concerns the conditions of his confinement. Furthermore, his three prior cases, identified supra,

qualify as “strikes” under § 1915(g). Therefore, the issue before the court is whether Plaintiff

qualifies under the “imminent danger of serious physical injury” exception and is thus entitled to

proceed in forma pauperis. 

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 v. Johnson, 387 F.3d 1344, 1350 (11th Cir. 2004), “the issue is whether [the] complaint, as

a whole, alleges imminent danger of serious physical injury.” Accordingly, when determining

whether a plaintiff has met his burden of proving that he is in imminent danger of serious physical

1 The inmate number of the plaintiff in those cases (#047123) is the same as Plaintiff’s.

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injury, the court must look to the complaint, which must be construed liberally and the allegations

of which must be accepted as true. See id.; Jackson v. Reese, 608 F.2d 159, 160 (5th Cir. 1979);

McAlphin v. Toney, 281 F.3d 709, 710 (8th Cir. 2002). 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). 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 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 (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, 279 F.3d

526, 531 (7th Cir. 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.”). Moreover, “imminent danger” is assessed not at the time

of the alleged incident, but rather at the time the complaint is filed. See Abdul-Akbar v. McKelvie,

239 F.3d 307, 213 (3d Cir. 2001). 

Plaintiff’s allegations in the instant complaint do not entitle him to avoid the bar of

§ 1915(g), as they do not suggest that he is under imminent danger of serious injury. Plaintiff has

not shown that any of the incidents of which he complains present an existing threat of serious

physical injury to him. Because the facts do not suggest that Plaintiff’s current conditions of

confinement pose an imminent threat of serious physical injury, he does not qualify under the

imminent danger exception to § 1915(g). Accordingly, he may not 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 failure to do so warrants dismissal without prejudice. Dupree v. Palmer,

284 F.3d 1234 (11th Cir. 2002); Vanderberg v. Donaldson, 259 F.3d 1321, 1324 (11th Cir. 2001).

 Accordingly, it is ORDERED:

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Plaintiff’s motion to proceed in forma pauperis (Doc. 7) is DENIED.

And it is respectfully RECOMMENDED:

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

to Plaintiff’s initiating a new cause of action accompanied by payment of the $350.00 filing fee in

its entirety.

At Pensacola, Florida, this 11th day of July 2011.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

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

fourteen (14) days after being served a copy thereof. Any different deadline that may appear

on the electronic docket is for the court’s internal use only. A copy of objections shall be

served upon all 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). 

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