LORUSSO v. SECRETARY FLORIDA DEPARTMENT OF CHILDREN AND FAMILY SERVICES et al

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UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
MICHAEL ANTHONY LORUSSO,
Plaintiff,
v. 	Case No. 4:26-cv-5-TKW-MJF
SECRETARY FLORIDA
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES, et al.,
Defendants.
/
REPORT AND RECOMMENDATION
The District Court should dismiss this case because: (1) Plaintiff
Michael LoRusso has incurred three strikes and failed to pay the filing
fee; 	(2) 	LoRusso 	fails 	to 	state 	a 	plausible 	claim 	for 	relief; 	and 	(3)
LoRusso’s attempt to change this § 1983 action into a petition for a writ
of habeas corpus fails because his proposed habeas petition is duplicative
of a petition already pending in this District.
BACKGROUND
LoRusso is a pre-trial detainee who currently is confined at the
North Florida Evaluation and Treatment Center pursuant to a Florida
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court adjudging him incompetent to stand trial in Pinellas County Circuit
Court Case No. 24-06524-CF.
A. 	The District Court’s Order to Screen LoRusso’s Petitions
LoRusso is a frequent filer in the Northern District of Florida. He
has filed more than sixty cases in this District, and many were dismissed
as improvidently filed, frivolous, or duplicative of already pending habeas
petitions.
Because LoRusso was abusing the judicial process, on October 14,
2025, the District Court ordered the clerk of the court to (1) “return to
Petitioner without filing any future documents seeking habeas relief that
are not accompanied by the filing fee or a complete IFP motion”; and (2)
“either return to Petitioner or refer to the division duty magistrate judge
for pre-filing screening any future documents received from Petitioner
that do not contain an existing case number.” See LoRusso v. Sec’y of
Families of Children Services, No. 1:25-cv-281-TKW-HTC, ECF No. 6,
(N.D. Fla.).
B. 	LoRusso Commences this Civil Action
LoRusso commenced this civil action pursuant to 42 U.S.C. § 1983
by filing a “complaint for violation of civil rights (prisoner complaint)”
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and a “supplement to the complaint” in the United States District Court
for the Middle District of Florida. Docs. 1, 2. In his complaint, LoRusso
names as Defendants the secretary of the Florida Children and Family
Services, the secretary of the Florida Department of Corrections, and
Centurion Medical Services. Doc. 1.
LoRusso alleges that Defendants violated federal law when they
falsified medical records to reflect that LoRusso has a mental illness and
lied to the federal judge presiding over one of his previously filed civil
cases: LoRusso v. Sec’y, Dep’t of Corr., No. 8:22-cv-2258-MSS-TGW (M.D.
Fla).1 Doc. 1 at 4. LoRusso also alleges that “Defendant engaged in a
conspiracy 	to 	deny 	Petition 	right 	to 	[illegible] 	expression 	of 	forged
information [illegible] the arrest warrant.” Id. at 3 (errors in original).
For relief, LoRusso seeks $125 million and the criminal prosecution of
Defendants. Id. at 5.
LoRusso’s “supplement” to the complaint is titled “Petition for Writt
of Habeas Corpus 28 U.S.C. § 2241.” Doc. 2. LoRusso’s supplement is
1 Filings in that case bear LoRusso’s FDC inmate number “345454.” See
No. 8:22-cv-2258-MSS-TGW, ECF No. 82-1.
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nonsensical and rambling. It offers no basis for challenging his pretrial
detention.2
The District Court for the Middle District of Florida construed
LoRusso’s filings as a civil rights complaint under 42 U.S.C. § 1983.
Judge Carlos E. Mendoza transferred the action to the Northern District
of Florida. Doc. 4.
B. 	The Undersigned’s Order to Show Cause
Because 	the 	District 	Court’s 	pre-screening 	injunction 	did 	not
explicitly apply to civil rights actions filed by LoRusso, and because
LoRusso had not paid the filing fee or filed a motion for leave to proceed
in forma pauperis, the undersigned ordered LoRusso to show cause why
this case should not be dismissed. Doc. 7. The undersigned also ordered
LoRusso to pay the filing fee or move for leave to proceed in forma
pauperis.
2 Had LoRusso submitted this “supplement” for filing in the United
States District Court for the Northern District of Florida, the clerk of the
court would have returned the filing pursuant to the District Court’s
order in LoRusso v. Sec’y of Families of Children Services, No. 1:25-cv-
281-TKW-HTC.
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C. 	LoRusso’s Motion for Leave to Proceed In Forma Pauperis
and Amended Habeas Petition
LoRusso filed a motion for leave to proceed in forma pauperis and a
proposed amended petition for writ of habeas corpus pursuant to 28
U.S.C. § 2241. Docs. 9 & 10. In his proposed amended petition, LoRusso
seeks to challenge the criminal proceedings in Pinellas County Circuit
Court Case No. 24-06524-CF.
D ISCUSSION
A. 	Dismissal Under 28 U.S.C. § 1915(g)
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 may 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 initiates the prisoner’s lawsuit, and failure to do so warrants
dismissal of the case. See Dupree v. Palmer, 284 F.3d 1234, 1236 (11th
Cir. 2002); Vanderberg v. Donaldson, 259 F.3d 1321, 1324 (11th Cir.
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2001). An exception exists when a 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).
1. 	LoRusso Has Accrued at Least Three “Strikes”
Pursuant to Federal Rule of Evidence 201, the undersigned takes
judicial 	notice 	that 	LoRusso 	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 may be granted:
• 	LoRusso 	v. 	Ga. 	Dep’t 	of 	Corr., 	No. 	1:03-cv-190 	(M.D. 	Ga.)
(dismissed as frivolous on December 30, 2003);
• LoRusso v Johnson, et al., No. 8:20-cv-1779 (M.D. Fla.) (dismissed
on May 27, 2021 for failure to state a claim); and
•LoRusso v. Paul, No. 5:22-cv-260 (E.D. Ky.) (dismissed as frivolous
on October 12, 2022).
These 	cases 	qualify 	as 	“strikes” 	under 	§ 	1915(g). 	These 	cases 	are
attributable to LoRusso insofar as they bear his name and FDC number
(345454).
Because LoRusso has accrued at least three strikes, he may not
litigate this case in forma pauperis, and he was required to pay the filing
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fee at case initiation, unless his allegations demonstrate that he was
“under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).
2. 	LoRusso 	Fails 	to 	Satisfy 	the 	Imminent-Danger
Exception
In 	determining 	whether 	a 	prisoner 	sufficiently 	has 	alleged
imminent danger of serious physical injury, the court “looks to the
complaint, construing it liberally and accepting its allegations as true.”
Daker v. Ward, 999 F.3d 1300, 1311 (11th Cir. 2021). To satisfy the
“imminent danger” exception, the prisoner must allege that he is in
“imminent danger ‘at the time that he seeks to file his suit in district
court.’” Id. at 1310–11 (quoting Medberry v. Butler, 185 F.3d 1189, 1192–
93 (11th Cir. 1999)). “General allegations that are not grounded in
specific facts which indicate that serious physical injury is imminent are
not sufficient to invoke the exception to § 1915(g).” Niebla v. Walton Corr.
Inst., 2006 WL 2051307, *2 (N.D. Fla. July 20, 2006) (citing Martin v.
Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003)); Daker, 999 F.3d at 1311
(general assertions are “insufficient to invoke the exception to § 1915(g)
absent specific fact allegations of ongoing serious physical injury, or of a
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pattern of misconduct evidencing the likelihood of imminent serious
physical injury.”).
Here, LoRusso’s allegations do not establish he is in imminent
danger of serious physical injury. LoRusso alleges that other inmates and
patients are “violent,” but LoRusso fails to allege specific facts indicating
that fellow patients have caused harm to LoRusso or likely will cause him
serious physical injury. A mere allegation that a person was “violent” is
insufficient to invoke 1915(g)’s exception. 	Ridley v. Ward, 2023 WL
11967765, at *2 (N.D. Ga. Mar. 31, 2023).
Because LoRusso is barred from proceeding in forma pauperis, the
District Court must deny LoRusso’s motion for leave to proceed in forma
pauperis and dismiss this case without prejudice under 28 U.S.C. §
1915(g). Dupree, 284 F.3d at 1236.
B. 	Dismissal Under 28 U.S.C. § 1915A(b)(1)
There is a second, independent reason to dismiss this civil action: a
district court must dismiss a civil action filed by a prisoner if the court
determines that the action is frivolous, malicious, or fails to state a claim
on which relief may be granted. 28 U.S.C. § 1915A(b)(1).
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1. 	Sovereign Immunity
LoRusso sues the FDC and the Secretary of the Florida Children
and Family Services under § 1983 for damages. These claims must be
dismissed because these Defendants are entitled to sovereign immunity.
The Eleventh Amendment recognizes that the States may assert
sovereign immunity that would bar suits by an individual against a
State, its agencies, and its employees in their official capacity, unless
Congress has abrogated the State’s sovereign immunity, or the State has
consented to the lawsuit. See Hans v. Louisiana, 134 U.S. 1, 16–18 (1890);
Manders v. Lee, 338 F.3d 1304, 1308 (11th Cir. 2003) (en banc).
The Eleventh Amendment and the doctrine of sovereign immunity,
however, do not preclude suits against state officers in their official
capacities for prospective injunctive relief. Summit Med. Assoc., P.C. v.
Pryor, 180 F.3d 1326, 1337 (11th Cir. 1999) (citing Green v. Mansour, 474
U.S. 64, 68 (1985)). Ex parte Young provides a narrow exception to
sovereign immunity in cases where a party is seeking prospective relief
against state officials for ongoing violations of federal law. 209 U.S. 123
(1908). “In determining whether the doctrine of Ex parte Young avoids an
Eleventh 	Amendment 	bar 	to 	suit, 	a 	court 	need 	only 	conduct 	a
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‘straightforward inquiry into whether [the] complaint alleges an ongoing
violation 	of 	federal 	law 	and 	seeks 	relief 	properly 	characterized 	as
prospective.’” Va. Off. for Prot. & Advoc. v. Stewart, 563 U.S. 247, 255
(2011) (quoting Verizon Md. Inc. v. Public Serv. Comm’n of Md., 535 U.S.
635, 645 (2002)).
Congress has not abrogated the States’ sovereign immunity in
actions for damages under § 1983. Will v. Mich. Dep’t of State Police, 491
U.S. 58, 67–68 (1989). Furthermore, Florida has not waived its immunity
from suit. See Zatler v. Wainwright, 802 F.2d 397, 400 (11th Cir. 1986)
(“Florida’s limited waiver of sovereign immunity was not intended to
encompass 	section 	1983 	suits 	for 	damages.”) 	(internal 	citation 	and
quotations omitted). Thus, LoRusso’s claims for damages against the
FDC and the Secretary of the Florida Children and Family Services must
be dismissed.
2. 	LoRusso Requests Criminal Prosecution of Defendants
LoRusso also requests that the District Court initiate a criminal
prosecution of Defendants. This claim is frivolous.
“The Executive Branch—not the Judiciary—makes arrests and
prosecutes offenses on behalf of the United States.” United States v.
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Texas, 599 U.S. 670, 679 (2023) “Under the authority of Art. II, s 2,
Congress has vested in the Attorney General”—not the federal courts—
“the 	power 	to 	conduct 	the 	criminal 	litigation 	of 	the 	United 	States
Government.” United States v. Nixon, 418 U.S. 683, 694 (1974) (citing 28
U.S.C. § 516).
Because the District Court lacks the authority to initiate criminal
prosecutions against Defendants, LoRusso’s claim is frivolous.
C. 	The District Court Should Dismiss Plaintiff’s Habeas
Petitions
As noted above, LoRusso seeks to change this civil action—that
LoRusso filed pursuant to 42 U.S.C. § 1983—into a petition for a writ of
habeas corpus. But an action pursuant to § 1983 and a petition for a writ
of habeas corpus “are mutually exclusive: if a claim can be raised in a
federal habeas petition, that same claim cannot be raised in a separate §
1983 civil rights action.” Hutcherson v. Riley, 468 F.3d 750, 754 (11th Cir.
2006) (emphasis added). Thus, LoRusso may not convert this civil action
into a habeas proceeding merely by requesting as much. “[A] petition for
habeas corpus may not be ‘converted’ to a civil suit, nor may district
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judges convert suits in the other direction.” Richmond v. Scibana, 387
F.3d 602, 606 (7th Cir. 2004).
Even if the District Court possessed the power to convert this civil
action into one seeking a writ of habeas corpus, that would create a
duplicative habeas case. LoRusso asserts that the State is engaging in
“vindictive prosecution” and brought the charges against LoRusso to
penalize LoRusso for “exercising a constitutional right to file an 2254
petition.” Doc. 9 at 3. Essentially this is the same habeas claim that
LoRusso has raised in another case. 	See LoRusso v. Secretary Fla. Dept.
of Child. and Fam., 1:25-cv-105-TKW-MAF (N.D. Fla.). A petitioner may
not maintain two duplicative habeas cases. See I.A. Durbin, Inc. v.
Jefferson Nat’l Bank, 793 F.2d 1541, 1551 (11th Cir. 1986) (explaining
“the general rule is that a suit is duplicative of another suit if the parties,
issues and available relief do not significantly differ between the two
actions” 	and 	federal 	trial 	courts 	have 	broad 	discretion 	to 	dismiss
duplicative litigation to avoid wasting judicial resources); Martin v. Sec'y,
Dep't of Corr., No. 24-10677, 2024 WL 2853188, at *1 (11th Cir. June 5,
2024) (citing I.A. Durbin, Inc., and applying same principle to duplicative
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habeas appeal). Thus, LoRusso’s attempt to recast this § 1983 action as
a habeas case does not prevent dismissal.
CONCLUSION
For 	the 	reasons 	set 	forth 	above, 	the 	undersigned 	respectfully
RECOMMENDS that the District Court:
1. 	DENY 	LoRusso’s 	motion 	for 	leave 	to 	proceed 	in 	forma
pauperis, Doc. 10.
1. 	DISMISS this civil action with prejudice under 28 U.S.C. §
1915(g) and 28 U.S.C. § 1915A(b)(1).
3. 	DIRECT the clerk of court to close this case file.
At Panama City, Florida, this 17th day of April 2026.
/s/ Michael J. Frank
Michael J. Frank
United States Magistrate Judge
NOTICE TO THE PARTIES
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
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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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