CONSTANT v. FLORIDA DEPARTMENT OF CORRECTIONS et al

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
BRIAN CHARLES PIERRE
CONSTANT III,
D.O.C. # U59225,
Plaintiff,
vs. Case No. 4:26-cv-1-MCR-MAF
FLORIDA DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.
___________________________/
REPORT AND RECOMMENDATION
Plaintiff, a pro se state prisoner, submitted a civil rights complaint on
December 29, 2025 by prison mailbox rule. ECF No. 1. Plaintiff did not pay
the filing fee, but did submit a prisoner consent form and financial certificate,
along with a copy of his inmate trust account statement for January through
March 2025. ECF No. 2. Though deficient, the Court construes the filing as
a motion for leave to proceed in forma pauperis (IFP). Plaintiff is not eligible
for IFP status because he is a “three-striker” under the Prison Litigation
Reform Act (PLRA) and the complaint fails to show he is in imminent danger
of serious physical injury. Dismissal is warranted.
The PLRA prohibits a prisoner from bringing a civil action without
prepaying the filing fee “if the prisoner has, on 3 or more prior
Case 4:26-cv-00001-MCR-MAF Document 4 Filed 01/06/26 Page 1 of 4

Page 2 of 4
4:26-cv-1-MCR-MAF
occasions…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). Plaintiff
acknowledges in his complaint that he is a three-striker. ECF No. 1 at 9.
Judicial notice is taken of the following civil rights cases filed by Plaintiff
and dismissed as frivolous, malicious, or for failure to state a claim: (1)
Constant III v. Clemmons, et al., Case No. 3:20-cv-5389-MCR-EMT (N.D.
Fla. June 17, 2020) (malicious); (2) Constant III v. Beasley, et al., Case No.
5:20-cv-85-TJC-PRL (M.D. Fla. September 24, 2020) (failure to state a
claim); (3) Constant III v. Beasley, et al., No. 20-13721-A (11th Cir. March 5,
2021) (appeal dismissed as frivolous from the dismissal in Case No. 5:20-
cv-85). All were filed when Plaintiff was a prisoner.1
Because Plaintiff has three strikes, he is not entitled to proceed without
paying the filing fee at the time of case initiation unless he alleges that he is
“under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).
Plaintiff should be aware of this because he previously had a case dismissed
pursuant to § 1915(g). Constant III v. Marion County Sheriff’s Office, et al.,
1 Each case cited herein contains Plaintiff’s name and either his DOC or Marion County
County Jail inmate number.
Case 4:26-cv-00001-MCR-MAF Document 4 Filed 01/06/26 Page 2 of 4

Page 3 of 4
4:26-cv-1-MCR-MAF
Case No. 5:21-cv-429-WFJ-PRL (M.D. Fla. September 17, 2021). Plaintiff’s
complaint fails to show imminent danger. He alleges excessive force and
ADA violations based on events that occurred in November 2023 at the
Reception and Medical Center (RMC) in Lake Butler.2 See ECF No. 1 at 5-
6. Plaintiff cannot rely on allegations of past assaults or actions to establish
imminent harm. See Porter v. Inch, Case No. 4:20-cv-230, 2020 WL
4018612, at *4 (N.D. Fla. June 19, 2020) (finding no imminent danger when
the alleged assault occurred nearly one month prior to the filing of the
complaint).
Plaintiff’s complaint fails to allege imminent danger of serious physical
injury. Therefore, this case should be summarily dismissed without prejudice
because Plaintiff did not submit the filing fee at the same time the complaint
was submitted, and as a three-striker under § 1915(g), Plaintiff is not entitled
to belatedly pay the filing fee. Dupree v. Palmer, 284 F.3d 1234, 1236 (11th
Cir. 2002). “The prisoner cannot simply pay the filing fee after being denied
in forma pauperis status.” Id.
2 Lake Butler is located within the Middle District of Florida. However, Plaintiff sues the
Florida Department of Corrections (DOC) and several staff members in their official and
individual capacities. ECF No. 1 at 2-3. Because DOC is headquartered within the
Northern District of Florida, venue here is proper for this limited review.
Case 4:26-cv-00001-MCR-MAF Document 4 Filed 01/06/26 Page 3 of 4

Page 4 of 4
4:26-cv-1-MCR-MAF
RECOMMENDATION
It is respectfully RECOMMENDED that Defendant’s motion for leave
to proceed in forma pauperis, ECF No. 2, be DENIED and this case be
DISMISSED without prejudice. The Order adopting this Report and
Recommendation should direct the Clerk of Court to note on the docket that
this case was dismissed pursuant to 28 U.S.C. § 1915(g).
IN CHAMBERS at Tallahassee, Florida on January 6, 2026.
s/ Martin A. Fitzpatrick
MARTIN A. FITZPATRICK
UNITED STATES MAGISTRATE JUDGE
NOTICE TO THE PARTIES
Within fourteen (14) days after being served with a copy of this
Report and Recommendation, a party may serve and file specific
written objections to these proposed findings and recommendations.
Fed. R. Civ. P. 72(b)(2). A copy of the objections shall be served upon
all other parties. A party may respond to another party’s objections
within fourteen (14) days after being served with a copy thereof. Fed.
R. Civ. P. 72(b)(2). Any different deadline that may appear on the
electronic docket is for the Court’s internal use only and does not
control. If a party fails to object to the Magistrate Judge’s findings or
recommendations as to any particular claim or issue contained in this
Report and Recommendation, that party waives the right to challenge
on appeal the District Court’s order based on the unobjected-to factual
and legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636(b)(1)(C).
Case 4:26-cv-00001-MCR-MAF Document 4 Filed 01/06/26 Page 4 of 4