3:26-cv-03850•HART v. SECRETARY FLORIDA DEPARTMENT OF CORRECTIONS et al
Full text
1 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION RANDY A. HART, FDOC Inmate No. 075432, Plaintiff, vs. Case No.: 3:26cv3850/AW/ZCB SECRETARY DEPARTMENT OF CORRECTIONS, et al. Defendants. / REPORT AND RECOMMENDATION Plaintiff is an inmate of the Florida Department of Corrections (FDOC). He filed this pro se civil rights lawsuit against the FDOC, Walton Correctional Institution, and the FDOC Secretary. (Doc. 1).1 Upon review of Plaintiff’s litigation history, the Court has determined that he is a three-striker. This means that he is ineligible to proceed in forma pauperis (IFP) and was required to pay the filing fee upon initiating this suit. Plaintiff did not pay the filing fee, so for that reason, this case should be dismissed without prejudice. 1 The U.S. District Court for the Middle District of Florida transferred Plaintiff’s complaint to this Court. (Docs. 5, 6). Case 3:26-cv-03850-AW-ZCB Document 8 Filed 05/20/26 Page 1 of 8
2 I. Discussion Under the three strikes provision, a prisoner cannot proceed IFP in a civil action if he has “on 3 or more prior occasions, while incarcerated . . . , 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[.]” 28 U.S.C. § 1915(g). The statute provides a narrow exception for instances where the prisoner is “under imminent danger of serious physical injury.” Id.; see also Daker v. Bryson, 784 F. App’x 690, 692 (11th Cir. 2019) (explaining that the “sole exception to the three strikes bar is where the prisoner is under imminent danger of serious physical injury”). A prisoner who is ineligible to proceed IFP must pay the full filing fee when the lawsuit is filed. Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002). The Eleventh Circuit has explained that when the district court determines that the prisoner is ineligible to proceed in forma pauperis under § 1915(g), the proper procedure is for the district court to dismiss the complaint without prejudice. Id. According to Dupree, a prisoner cannot avoid dismissal by simply paying the filing fee at a later time because the filing fee is due at the time the prisoner initiated the suit. Id.; see also Vanderberg v. Donaldson, 259 F.3d 1321, 1324 (11th Case 3:26-cv-03850-AW-ZCB Document 8 Filed 05/20/26 Page 2 of 8
3 Cir. 2001) (stating that after three meritless suits, a prisoner must pay the full filing fee at the time he initiates suit). The Court has reviewed Plaintiff’s litigation history on the Public Access to Court Electronic Records (PACER) database.2 That review has revealed that Plaintiff (while a prisoner) previously filed at least three actions or appeals in federal courts that were dismissed as frivolous or for failure to state a claim on which relief can be granted. More specifically: • Hart v. Secretary, 5:16cv362-WTH-PRL (M.D. Fla. Apr. 3, 2018) (dismissing Plaintiff’s complaint for failure to state a claim on which relief can be granted under Fed. R. Civ. P. 12(b)(6)); • Hart v. United States, 1:16cv21889-FAM (S.D. Fla. July 29, 2016) (dismissing Plaintiff’s complaint for failure to state a claim under § 1915(e)(2)(B)(ii)); 2 Federal Rule of Evidence 201 permits a court to “judicially notice a fact that is not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2). Case 3:26-cv-03850-AW-ZCB Document 8 Filed 05/20/26 Page 3 of 8
4 • Hart v. Hays, 1:16cv21395-UU (S.D. Fla. May 10, 2016) (dismissing Plaintiff’s complaint for failure to state a claim under § 1915(e)(2)(B)(ii)); • Hart v. Marlow, 1:15cv21257-DPG (S.D. Fla. Aug. 31, 2015) (dismissing Plaintiff’s complaint for failure to comply with court orders and, alternatively, for failure to state a claim under 28 U.S.C. § 1915A); and • Hart v. State of Florida, 8:13cv2533-JSM-MAP (M.D. Fla. Oct 4, 2013) (dismissing Plaintiff’s complaint as frivolous under § 1915(e)(2)).3 In fact, this Court and the U.S. District Court for the Southern District of Florida have previously recognized Plaintiff as a three striker who is barred from proceeding IFP: • Hart v. Dudley, No. 3:25cv1377/MCR/ZCB (N.D. Fla. Jan. 9, 2026); • Hart v. Warden, No. 3:24cv486/LC/ZCB (N.D. Fla. Nov. 8, 2024); 3 Plaintiff identified himself with FDOC inmate #075432 in his pleadings in those cases. Case 3:26-cv-03850-AW-ZCB Document 8 Filed 05/20/26 Page 4 of 8
5 • Hart v. Davis, No. 3:24cv141/LC/ZCB (N.D. Fla. Apr. 15, 2024); • Hart v. Davis, No. 3:23cv24653/TKW/ZCB (N.D. Fla. Dec. 21, 2023); • Hart v. Davis, No. 3:20cv5587/LC/EMT (N.D. Fla. July 7, 2021); • Hart v. Secretary, No. 4:18cv411/MW/MJF (N.D. Fla. Jan. 17, 2019); • Hart v. Collins, No. 4:18cv339/MW/CAS (N.D. Fla. Dec. 14, 2018); • Hart v. Turner, No. 1:16cv22463-KMW (S.D. Fla. Sept. 26, 2016); • Hart v. Secretary, No. 1:16cv23556-UU (S.D. Fla. Sept. 26, 2016); and • Hart v. Secretary, No. 2:16cv14357-DMM (S.D. Fla. Sept. 15, 2016). Because Plaintiff had three strikes when he commenced this case, he cannot proceed IFP and should have paid the filing fee at the time of filing. He failed to do so. The only remaining question is whether Case 3:26-cv-03850-AW-ZCB Document 8 Filed 05/20/26 Page 5 of 8
6 Plaintiff’s factual allegations support a finding that he is “under imminent danger of serious physical injury” as required for the exception in § 1915(g) to apply. The answer to that question is no. The § 1915(g) exception requires the complaint to allege imminent danger of serious physical injury. Brown v. Johnson, 387 F.3d 1344, 1350 (11th Cir. 2004). The exception requires “specific, credible allegations of imminent-danger of serious physical harm.” Chestnut v. Leavins, No. 3:21cv827, 2021 WL 3134392, at *6 (N.D. Fla. July 2, 2021) (cleaned up), adopted, 2021 WL 3132724 (N.D. Fla. July 24, 2021). A complaint must include “specific fact allegations of ongoing serious physical injury, or of a pattern of misconduct evidencing the likelihood of imminent serious physical injury.” Sutton v. Dist. Atty’s Office, 334 F. App’x 278, 279 (11th Cir. 2009). Here, Plaintiff’s complaint has not provided any plausible allegations of imminent danger. Instead, in conclusory fashion, Plaintiff merely cites § 1915(g) and states he “is now in imminent danger of serious physical injury by know[n] gang members and Muslims.” (Doc. 1 at 2). No specific factual allegations are provided, making it entirely unclear how Plaintiff is in danger and who is causing the danger. Case 3:26-cv-03850-AW-ZCB Document 8 Filed 05/20/26 Page 6 of 8
7 As such, Plaintiff’s vague and conclusory reference to § 1915(g) is insufficient to invoke the three-strikes exception under that statute. See Sutton, 334 F. App’x at 279 (concluding that “general assertions” are insufficient to invoke § 1915(g)’s exception “absent specific fact allegations of ongoing serious physical injury, or of a pattern of misconduct evidencing the likelihood of serious physical injury”). Because Plaintiff’s allegations are insufficient under § 1915(g), dismissal without prejudice is appropriate. II. Conclusion Accordingly, it is respectfully RECOMMENDED that: 1. This action be DISMISSED without prejudice, under 28 U.S.C. § 1915(g), based on Plaintiff’s failure to pay the filing fee when he commenced this case. 2. The Clerk of Court be directed to enter judgment accordingly and close this case. At Pensacola, Florida this 20th day of May 2026. /s/ Zachary C. Bolitho Zachary C. Bolitho United States Magistrate Judge Case 3:26-cv-03850-AW-ZCB Document 8 Filed 05/20/26 Page 7 of 8
8 Notice to the Parties 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. Case 3:26-cv-03850-AW-ZCB Document 8 Filed 05/20/26 Page 8 of 8
Wondering how this text applies to your situation?
Free consultation, no commitment
Describe your situation. Our team will contact you by email about your consultation.
Continue your research in ChatGPT or Claude
Connect Omnilex to search the legal corpus from your AI assistant.