MARTINEZ v. COOPER et al

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UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
JOSHUA ISAAC MARTINEZ,
Plaintiff,
v. 	Case No. 4:26-cv-9-AW-MJF
OFFICER COOPER, et al.,
Defendants.
/
REPORT AND RECOMMENDATION
In this civil action, Plaintiff is suing six prison officials of the Taylor
Correctional 	Institution 	for 	alleged 	violations 	of 	the 	First, 	Fourth,
Eighth, and Fourteenth Amendments of the United States Constitution.
Doc. 1 at 3. The undersigned recommends that the District Court dismiss
this case under 28 U.S.C. § 1915(g).
P LAINTIFF’S COMPLAINT
Plaintiff is an inmate of the Florida Department of Corrections
(“FDC”) currently housed at Cross City Correctional Institution. Doc. 1.
Plaintiff was formerly housed at Taylor Correctional Institution. Id.
Plaintiff initiated this civil action on January 9, 2026, by filing a civil-
rights complaint and a motion for leave to proceed in forma pauperis.
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Docs. 1, 2. Plaintiff alleges that on July 10, 2025, while housed at the
Taylor Correctional Institution, one or more Defendants “invidiously
discriminated against [him]” by physically harming Plaintiff because of
his status as a “Judeo-Christian holding a Bible” and acted with “reckless
disregard” in doing so. Doc. 1 at 6. Plaintiff also seeks to hold various
supervisory Defendants liable for allegedly “cover[ing] the incident up.”
Id.
D ISCUSSION
A party who files a civil case must simultaneously pay any fee
required under 28 U.S.C. § 1914, or more for leave to proceed in forma
pauperis under 28 U.S.C. § 1915. See 28 U.S.C. § 1914; 28 U.S.C. § 1915;
N.D. Fla. Loc. R. 5.3. Pursuant to 28 U.S.C. § 1915(g), a prisoner is
prohibited from proceeding in forma pauperis in a civil action if the
prisoner 	previously 	filed 	three 	or 	more 	actions 	or 	appeals, 	while
incarcerated, that were dismissed for frivolity, maliciousness, or failure
to state a claim on which relief can be granted. 28 U.S.C. § 1915(g); see
Lomax v. Ortiz-Marquez, 590 U.S._, 140 S. Ct. 1721, 1723 (2022).
A prisoner who is barred from proceeding in forma pauperis must
pay the filing fee at the time the prisoner files his case, and failure to do
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so warrants dismissal of the case without prejudice. 	See Dupree v.
Palmer, 	284 	F.3d 	1234, 	1236 	(11th 	Cir. 	2002) 	(an 	action 	must 	be
dismissed without prejudice when an inmate who is subject to § 1915(g)
does 	not 	pay 	the 	filing 	fee 	at 	the 	time 	the 	inmate 	initiates 	suit);
Vanderberg v. Donaldson, 259 F.3d 1321, 1324 (11th Cir. 2001). The only
exception is if the prisoner alleges that the prisoner is "under imminent
danger of serious physical injury." 28 U.S.C. § 1915(g); see also Brown v.
Johnson, 387 F.3d 1344 (11th Cir. 2004).
A. 	Plaintiff Has Accrued at Least Three “Strikes”
Pursuant to Federal Rule of Evidence 201, the undersigned takes
judicial 	notice 	that 	Plaintiff 	filed 	the 	following 	civil 	actions 	while
incarcerated in the FDC that were dismissed as frivolous or for failure to
state a claim on which relief can be granted:
• 	Martinez v. United States, No. 1:25-cv-3-AW-HTC, 2025 WL 551867
(N.D. Fla. Feb. 19, 2025) (civil-rights action dismissed as frivolous,
among other reasons); and
• 	Martinez v. Dixon, No. 1:24-cv-21-MW-MAF, 2024 WL 2723875
(N.D. Fla. May 28, 2024) (civil-rights action dismissed for failure to
state a claim on which relief can be granted), appeal docketed, No.
24-12000 (11th Cir. 2024).1
1 A prior dismissal on a ground enumerated in 28 U.S.C. § 1915(g) counts
as a strike even if the dismissal is the subject of an appeal. Coleman v.
Tollefson, 575 U.S. 532, 534, 541 (2015).
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In addition, Plaintiff filed the following appeal while incarcerated in
the FDC that was dismissed as frivolous:
• 	Martinez v. United States of America, No. 25-10702 (11th Cir. Aug.
1, 2025) (dismissing appeal of the judgment in No. 1:25-cv-3-AW-
HTC, as frivolous) (copy at No. 1:25-cv-3, Doc. 30).
These cases qualify as “strikes” under § 1915(g). These cases are
attributable to Plaintiff insofar as they bear his name and inmate
number (DC#V44831). Plaintiff also acknowledges that federal courts
previously have dismissed Plaintiff’s cases because of the “three strikes
rule.” Doc. 1 at 13.
Because Plaintiff has accrued at least three strikes, he may not litigate
this case in forma pauperis and was required to pay the filing fee at case
initiation, unless his allegations demonstrate that he is “under imminent
danger of serious physical injury.” 28 U.S.C. § 1915(g).
B. 	Plaintiff Fails to Satisfy the Imminent-Danger Exception
To satisfy the “imminent danger” exception, “the prisoner must
show he is in imminent danger ‘at the time that he seeks to file his suit
in district court.’” Daker v. Ward, 999 F.3d 1300, 1310–11 (11th Cir. 2021)
(quoting Medberry v. Butler, 185 F.3d 1189, 1192–93 (11th Cir. 1999)).
An allegation of past danger will not invoke the exception. Medberry, 185
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F.3d at 1193 (“[A] prisoner’s allegation that he 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 	to 	[§
1915(g)].”).
In determining whether a prisoner has proved imminent danger of
serious physical injury, the court “looks to the complaint, construing it
liberally and accepting its allegations as true.” Daker, 999 F.3d at 1311.
“General assertions, however, are insufficient to invoke the exception to
§ 1915(g) absent specific fact allegations of ongoing serious physical
injury, 	or 	of 	a 	pattern 	of 	misconduct 	evidencing 	the 	likelihood 	of
imminent serious physical injury.” Id. (internal quotation marks and
citation omitted).
Plaintiff’s allegations concern a past incident of discrimination and
physical harm that occurred at another correctional institution. Plaintiff
does not allege an ongoing threat of physical harm. Therefore, Plaintiff’s
allegations do not satisfy the high bar § 1915(g) has set for prisoners who
have incurred three strikes to proceed in forma pauperis. The “imminent
danger” exception is available “for genuine emergencies,” where “time is
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pressing” and “a threat . . . is real and proximate.” Lewis v. Sullivan, 279
F.3d 526, 531 (7th Cir. 2002). No such showing has been made here.
Because Plaintiff is barred from proceeding in forma pauperis and
failed to pay the filing fee at the time he initiated this lawsuit, the
District Court must dismiss this case under 28 U.S.C. § 1915(g). See
Dupree, 284 F.3d at 1236.
CONCLUSION
For 	the 	reasons 	set 	forth 	above, 	the 	undersigned 	respectfully
RECOMMENDS that the District Court:
1. 	DENY 	Plaintiff’s 	motion 	for 	leave 	to 	proceed 	in 	forma
pauperis, Doc. 2.
2. 	DISMISS this civil action without prejudice under 28 U.S.C.
§ 1915(g).
3. 	DIRECT the clerk of court to close this case file.
At Pensacola, Florida, this 22nd day of January, 2026.
/s/ Michael J. Frank
Michael J. Frank
United States Magistrate Judge
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NOTICE TO THE PARTIES
The 	District 	Court 	referred 	this 	case 	to 	the
undersigned to address all preliminary matters and to
make recommendations regarding dispositive matters.
See 	N.D. 	Fla. 	Loc. 	R. 	72.2; 	see 	also 	28 	U.S.C.
§ 636(b)(1)(B), (C); Fed. R. Civ. P. 72(b). Objections to
these proposed findings and recommendations must be
filed within fourteen days of the date of the Report and
Recommendation. 	Any 	different 	deadline 	that 	may
appear 	on 	the 	electronic 	docket 	is 	for 	the 	court’s
internal use only and does not control. An objecting
party must serve a copy of the objections on all other
parties. A party who fails to object to the magistrate
judge’s findings or recommendations contained in a
report 	and 	recommendation 	waives 	the 	right 	to
challenge on appeal the district court’s order based on
unobjected-to factual and legal conclusions. See 11th
Cir. Rule 3-1; 28 U.S.C. § 636.
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