4:26-cv-00152•FRANKLIN v. FRANKLIN III
Gesamter Gesetzestext
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION JOSHUA D. FRANKLIN, DOC #Q22379, Plaintiff, vs. Case No. 4:26-cv-152-AW-MAF JOSEPH D. FRANKLIN, III, Defendant. __________________________/ REPORT AND RECOMMENDATION Plaintiff, a Florida prisoner proceeding pro se, initiated this case with the submission of a civil rights complaint, ECF No. 1, pursuant to 42 U.S.C. § 1983, and an in forma pauperis motion, ECF No. 3. Plaintiff’s motion is insufficient, however, because Plaintiff did not submit copies of his inmate bank account statement with the motion. ECF No. 3. Instead, Plaintiff indicated he had requested a statement from classification but had not received a response. ECF No. 3 at 1. He requested the Court “contact FDOC for account balance: $0.00.” Id. Plaintiff’s request cannot be granted. It is Plaintiff’s responsibility to provide the account statement with his motion. 28 U.S.C. § 1915(a)(2). Case 4:26-cv-00152-AW-MAF Document 4 Filed 04/06/26 Page 1 of 6
Page 2 of 6 The Court cannot waive that statutory requirement, although the Court could provide Plaintiff with an opportunity to file an amended in forma pauperis motion that complies with § 1915(a)(2). In this case, it is not necessary to do so. Included within the in forma pauperis statute, 28 U.S.C. § 1915, is a provision which prohibits a prisoner from filing a civil lawsuit without full prepayment of the filing fee if the prisoner has had three prior cases dismissed on the grounds of “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’s complaint has been reviewed to determine if Plaintiff has had three such dismissals - “three strikes” - and whether Plaintiff acknowledged those cases. See ECF No. 1 at 8. Plaintiff’s complaint provides a cursory acknowledgment that Plaintiff previously had a case “dismissed as frivolous, as malicious, for failure to state a claim, or prior to service.” ECF No. 1 at 8. However, Plaintiff did not specifically identify any such case or list any of his prior cases. Instead, Plaintiff wrote: “unknown - no records!” Id. Case No. 4:26cv152-AW-MAF Case 4:26-cv-00152-AW-MAF Document 4 Filed 04/06/26 Page 2 of 6
Page 3 of 6 That is not a permissible statement because it is Plaintiff’s responsibility to keep an accurate list of his prior litigation. Moreover, such a statement suggests that Plaintiff has filed cases which he does not wish to disclose. Thus, this Court has undertaken a review of Plaintiff’s civil litigation history. While numerous cases were dismissed for Plaintiff’s failure to comply with court orders or rules, several cases are worthy of note. Plaintiff filed case number 3:22cv528-MMH-JBT in the Middle District of Florida, Jacksonville Division. That case was dismissed for failure to exhaust administrative remedies. ECF No. 35 of that case. Such a dismissal counts as a “strike” under 28 U.S.C. § 1915(g). See Wells v. Brown, 58 F.4th 1347, 1360 (11th Cir. 2023) (affirming dismissal for failing to exhaust as a “strike” under § 1915(g), but explaining that not every pre- screening dismissal will count as a strike); Jones v. Bock, 549 U.S. 199, 216, 127 S. Ct. 910, 921, 166 L. Ed. 2d 798 (2007) (“As noted, that is not to say that failure to exhaust cannot be a basis for dismissal for failure to state a claim”). While exhaustion is an affirmative defense, if “the plaintiff's failure to exhaust appears on the face of the complaint.,” then the “plaintiff has failed to state a claim.” Wells, 58 F.4th at 1357. Case No. 4:26cv152-AW-MAF Case 4:26-cv-00152-AW-MAF Document 4 Filed 04/06/26 Page 3 of 6
Page 4 of 6 Plaintiff also filed case number 3:22cv687-BJD-LLL in the Middle District of Florida. Review of the order of dismissal confirms the case was dismissed on July 19, 2022, for failure to state a claim. ECF No. 4 of that case. It counts as Plaintiff’s second “strike.” Third, Plaintiff filed case number 3:22cv699-BJD in the Middle District of Florida. That case was likewise dismissed by the court sua sponte for failure to state a claim under § 1983. ECF No. 5 of that case. Accordingly, Plaintiff has “three strikes” under 28 U.S.C. § 1915(g) from the Middle District. In addition, Plaintiff has previously had at least three cases dismissed in this Court for reasons which count as “strikes.” For example, case number 4:22cv389-AW-MAF was dismissed as “frivolous,” and case numbers 4:22cv388-AW-MAF and 4:22cv424-AW-MAF were dismissed “as malicious” for “abuse of the judicial process” and for “failure to disclose litigation history.” Also, Plaintiff has had cases dismissed in this Court under the “three strikes” provision of 28 U.S.C. § 1915(g) with the conclusion that Plaintiff did not allege “imminent danger.” See case number 4:25cv461-AW-MAF and case number 4:23cv245-MW-MAF. One such dismissal was entered Case No. 4:26cv152-AW-MAF Case 4:26-cv-00152-AW-MAF Document 4 Filed 04/06/26 Page 4 of 6
Page 5 of 6 on February 17, 2026. See ECF No. 15 of case number 4:25cv461-AW- MAF. Therefore, Plaintiff is well aware that he is not entitled to in forma pauperis status unless he sufficiently alleges “imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). Plaintiff’s complaint has been reviewed to determine if Plaintiff made such a showing. He seeks to bring this lawsuit against his father for what are essentially state law claims. ECF No. 1 at 5 (suing for “fraud, deceit, breach of contract, fiduciary duties, embezzlement,” and the like). Plaintiff made a conclusory and unsupported assertion that he is “aware that [his] father is in an active conspiracy to commit [Plaintiff’s] murder . . . .” Id.; see also ECF No. 1-1 at 1. Plaintiff has not, however, alleged any facts which demonstrate that Plaintiff is in “imminent danger” of any harm from his father. Because Plaintiff is not entitled to proceed with in forma pauperis status, his motion for in forma pauperis status, ECF No. 3, should be denied and this case be dismissed without prejudice. Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (holding that 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 he initiates the suit). Plaintiff “cannot Case No. 4:26cv152-AW-MAF Case 4:26-cv-00152-AW-MAF Document 4 Filed 04/06/26 Page 5 of 6
Page 6 of 6 simply pay the filing fee after being denied in forma pauperis status.” Dupree, 284 F.3d at 1236. RECOMMENDATION It is respectfully RECOMMENDED that the motion for leave to proceed in forma pauperis, ECF No. 3, be DENIED and this case be DISMISSED without prejudice pursuant to 28 U.S.C. § 1915(g). It is further recommended that the Court of Court be directed to note on the docket that this case was dismissed pursuant to 28 U.S.C. § 1915(g). IN CHAMBERS at Tallahassee, Florida, on April 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). 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. Case No. 4:26cv152-AW-MAF Case 4:26-cv-00152-AW-MAF Document 4 Filed 04/06/26 Page 6 of 6
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