FRANKLIN v. FRANKLIN III

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).
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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.
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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.
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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
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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
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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.
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