KENDRICK v. PABIS et al

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UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
KENNETH JAMES KENDRICK,
Plaintiff,
v. 	Case No. 5:25-cv-279-TKW-MJF
WARDEN MICHAEL PABIS, et al.,
Defendants.
/
REPORT AND RECOMMENDATION
In this civil action, Plaintiff is seeking money damages against the
Warden of the Gulf Correctional Institution and Securus JPay, LLC,
because prison officials confiscated and retained Plaintiff’s electronic
tablet. The undersigned recommends that the District Court dismiss this
case under 28 U.S.C. § 1915(g).
P LAINTIFF’S COMPLAINT
Plaintiff is an inmate of the Florida Department of Corrections
(“FDC”) housed at the Gulf Correctional Institution. Doc. 1. Plaintiff
initiated this civil action on September 10, 2025, by filing a document
titled “Notice of Removal.” Doc. 1; see also Doc. 1-1 (mailing envelope).
Plaintiff’s filing was not accompanied by the filing fee or a motion for
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leave to proceed in forma pauperis. On October 1, 2025, the Middle
District construed Plaintiff’s filing as a complaint under 42 U.S.C. § 1983,
and transferred the civil action to the Northern District of Florida. Doc.
2.1
On October 2, 2025, the undersigned ordered Plaintiff to file an
amended civil-rights complaint on the Northern District’s form and to
pay the $405.00 filing fee or file a motion for leave to proceed in forma
pauperis. Doc. 5. The undersigned imposed a compliance deadline of
November 3, 2025, and warned Plaintiff that failure to comply with the
order likely would result in this civil action being dismissed. Plaintiff has
not complied with the October 2 order.
D ISCUSSION
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;
1 The Middle District properly construed Plaintiff’s filing as a complaint
under 42 U.S.C. § 1983. See Doc. 2. Although Plaintiff titled his filing a
“Notice of Removal,” the state-court case Plaintiff referenced was a
mandamus action Plaintiff filed that had been dismissed months earlier
on June 5, 2025. See Doc. 1 (referencing Kendrick v. Edwards, et al., No.
1D2025-0742 (Fla. 1st DCA 2025)); see also Attach. 1 (Case Docket, No.
1D2025-0742); Fed. R. Evid. 201 (authorizing judicial notice).
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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
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
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that were dismissed for failure to state a claim on which relief can be
granted:
• 	Kendrick v. Crosby, No. 6:03-cv-1259 (M.D. Fla. Apr. 21, 2004)
(civil-rights action dismissed for failure to state a claim); and
• 	Kendrick v. Florida, No. 8:11-cv-2402 (M.D. Fla. Oct. 26, 2011)
(civil-rights action dismissed for failure to state a claim).
In addition, Plaintiff filed the following appeal while incarcerated
that was dismissed as frivolous:
• 	Kendrick v. Calderon, No. 04-12664-A (11th Cir. Oct. 22,
2004) (dismissing appeal as frivolous) (copy at No. 6:03-cv-
1259, Doc. 27).
These cases qualify as “strikes” under § 1915(g). These cases are
attributable to Plaintiff insofar as they bear his name and inmate
number (DC#103035).
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
In determining whether a prisoner has proved imminent danger of
serious physical injury, the court “looks to the complaint, construing it
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liberally and accepting its allegations as true.” Daker v. Ward, 999 F.3d
1300, 1311 (11th Cir. 2021). The confiscation of Plaintiff’s electronic
tablet has not placed Plaintiff under imminent danger of serious physical
injury. 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 without prejudice under 28 U.S.C.
§ 1915(g). See Dupree, 284 F.3d at 1236. Plaintiff cannot avoid dismissal
under § 1915(g)’s three-strikes provision by mis-titling his complaint as
a notice of removal of a closed state-court case.
CONCLUSION
For 	the 	reasons 	set 	forth 	above, 	the 	undersigned 	respectfully
RECOMMENDS that the District Court:
1. 	DISMISS this civil action without prejudice under 28 U.S.C.
§ 1915(g).
2. 	DIRECT the clerk of court to close this case file.
At Panama City, Florida, this 17th day of November, 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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