MARTINEZ v. KEEN 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. 4:25-cv-498-MCR-MJF
WARDEN KEEN, et al.,
Defendants.
/
REPORT AND RECOMMENDATION
In this civil action, Plaintiff is suing eight prison officials of the
Taylor 	Correctional 	Institution 	for 	alleged 	religious 	discrimination,
verbal 	harassment 	and 	property-related 	issues. 	The 	undersigned
recommends that the District Court dismiss this case under 28 U.S.C. §
1915(g).
P LAINTIFF ’S C OMPLAINT
Plaintiff is an inmate of the Florida Department of Corrections
(“FDC”) housed at the Taylor Correctional Institution. Doc. 1. Plaintiff
initiated this civil action on December 1, 2025, by filing a civil-rights
complaint and a motion for leave to proceed in forma pauperis. Docs. 1,
2. 	Plaintiff alleges that on various dates ending on November 17, 2025,
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one 	or 	more 	Defendants 	verbally 	harassed 	Plaintiff; 	discriminated
against Plaintiff based on Plaintiff’s religion; and desecrated, destroyed
or 	confiscated 	Plaintiff’s 	property. 	Plaintiff 	seeks 	to 	hold 	various
supervisory Defendants liable based on their failure to take corrective
action after Plaintiff complained. As relief, Plaintiff seeks “to press
charges” 	against 	one 	Defendant 	(Officer 	Willis), 	and 	an 	injunction
barring Willis from “harassing” Plaintiff.
DISCUSSION
A party who files a civil case must simultaneously either pay any
fee required under 28 U.S.C. § 1914, or move 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 court 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 may be
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granted), appeal docketed, No. 24-12000 (11th Cir. June 18,
2024).1
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 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 acknowledges in his complaint that he
filed the foregoing cases. Doc. 1 at 18, 20 in ECF.
Because Plaintiff has accrued 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
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 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
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).
The 	alleged 	verbal 	harassment, 	religious 	discrimination, 	and
property desecration/restrictions 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
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emergencies,” where “time is 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 Panama City, Florida, this 8th day of December, 2025.
/s/ Michael J. Frank
Michael J. Frank
United States Magistrate Judge
NOTICE TO THE PARTIES
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The District Court referred this case to a magistrate
judge to make recommendations regarding dispositive
matters. See 28 U.S.C. § 636(b)(1)(B), (C). 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. A party must serve a copy of any
objections on all other parties. A party who fails to
object to this 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. R. 3-1; 28 U.S.C. § 636. The parties also are
advised 	that 	if 	they 	dispute 	the 	accuracy 	of 	any
judicially-noticed fact, or if they otherwise wish to be
heard on the propriety of the District Court taking
judicial notice of that fact, they must raise this issue in
an objection to this report and recommendation.
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