an amended complaint supersedes the filing of the initial complaint and becomes the operative pleading
How later courts described this case
- an amended complaint supersedes the filing of the initial complaint and becomes the operative pleading
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
KARLA L. WOOTEN,
Plaintiff,
V. Case No: 5:20-cv-19-Oc-02PRL
MARK INCH, AS SECRETARY FOR
THE FLORIDA DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.
/
ORDER.
THIS CAUSE is before the Court on Plaintiff Karla Wooten’s Civil Rights
Complaint filed pursuant to 42 U.S.C. § 1983. (Doc. 1). For relief in the initial
Complaint, Plaintiff sought ‘an emergency injunction ordering the DOC to transfer
me.” Id. at 5. Plaintiff signed this Complaint on January 8, 2020, see id. at 11, 12, and
it was docketed on January 13, 2020. On January 27, 2020, a second complaint was
docketed. (Doc. 7). This second complaint was signed on December 3, 2019. id. at 19.
The second complaint does not specify any requested relief but states she “is not safe
at Lowell Main Unit, Lowell Work Camp, Lowell Annex and request this Court’s
help.” Jd. at 17.
Under the “mailbox rule,” a prisoner’s filing is deemed filed on the date it was
signed and delivered to authorities for mailing. See Adams v. United States, 173 F.3d
1339 (11th Cir. 1999). Accordingly, the Court will treat the “initial” complaint (Doc.
1), filed under the mailbox rule on January 8, 2020, as the operative complaint. See
Krinsk v. SunTrust Banks, Inc., 654 F.3d 1194, 1202 (11th Cir. 2011) (an amended
complaint supersedes the filing of the initial complaint and becomes the operative
pleading).
On January 14, 2020, the Court directed the Warden of Lowell Correctional
Institution Annex to file a brief response updating the Court as to the Plaintiff's status.
(Doc. 4). The Warden filed a Response titled “Motion to Dismiss” seeking dismissal
of the complaint because Plaintiff failed to pay the full filing fee at the inception of the
case, Plaintiff was not in imminent danger of serious physical harm at the time she
filed the lawsuit, and Plaintiff is otherwise barred from proceeding in federal court by
28 U.S.C. § 1915(g). (Doc. 20).
Section 1915(g) of Title 28 limits a prisoner’s ability to bring a civil action in
forma pauperis under certain circumstances:
(g) Inno event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under this section if the prisoner
has, on 3 or more prior occasions, while incarcerated or detained in any
facility, 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 upon which relief may be granted, unless the prisoner is
under imminent danger of serious physical injury.
28 U.S.C. § 1915(g). Thus, if a prisoner has had three or more cases dismissed for one
of the recited reasons, he cannot proceed in forma pauperis and must pay the filing fee
in full at the time the lawsuit is initiated. Dupree v. Palmer, 284 F.3d 1234, 1236 (11th
Cir. 2002). Consequently, courts have a responsibility to dismiss cases, even sua sponte,
under 28 U.S.C. §1915(g). See, e.g., Casey v. Scott, 493 F. App’x 1000, 1001 (11th Cir.
2012).
The Court takes judicial notice of three federal actions previously brought by
Plaintiff that were dismissed as frivolous, malicious, or for failure to state a claim upon
which relief may be granted: (1) Karla L. Wooten v. Julianne Holt, 8:08-cv-2332-T-
26MAP, (2) Karla L. Wooten v. Julianne Holt, No. 08-17019-F (appeal dismissed as
frivolous from the dismissal in 8:08-cv-2332-T-23MAP), and (3) Karla L. Wooten v.
Sgt. Jones, 5:11-cv-286-Oc-10TBS. Accordingly, Plaintiff is barred from proceeding as
a pauper in a civil action unless she is under “imminent danger of serious physical
injury.” 28 U.S.C. § 1915(g).
In an attempt to avoid the three-strikes bar, Plaintiff states “Plaintiff in
imminent danger Lowell staff from Main Unit murdered inmate Latandara Ellington
in protective custody.” (Doc. 1 at 8). The Court finds that Plaintiff's allegation does
not amount to a threat of imminent danger of serious physical injury to her, but is
merely a statement of something that happened to another inmate in the past. The
plaintiff must provide specific fact allegations of ongoing serious physical injury, or a
pattern of misconduct evidencing the likelihood of imminent serious physical injury.
Brown v. Johnson, 387 F.3d 1344, 1349-50 (11th Cir. 2004).
Accordingly, upon due consideration, the case is due to be dismissed without
prejudice pursuant to 28 U.S.C. § 1915(g).! Further, in her Reply (Doc. 22), Plaintiff
1 “TT]he proper procedure is for the district court to dismiss the complaint without prejudice
when it denies the prisoner leave to proceed in forma pauperis pursuant to the three strikes
states she “now wants to stay at Lowell so that she can write daily reports to the FBI,
U.S. Dept of Justice and the Miami Herald on Lowell and so that she can watch more
Lowell staff be arrested like they have been arrested in the last 6 months.” (Doc. 22 at
2). Because Plaintiff appears to be withdrawing her request to be transferred, see Doc.
1 at 5, her request for injunctive relief is therefore moot.
It is now ORDERED and ADJUDGED:
1. This case is hereby DISMISSED without prejudice.
2. The Clerk of Court is directed to terminate any pending motions, close
this case, and enter judgment accordingly.
DONE and ORDERED in Tampa, Florida on March 500,
F. JUNG
UNITED STATES DISTRICT JUDGE
Copies furnished to:
Pro se Plaintiff
Counsel of Record
provision of § 1915(g). The prisoner cannot simply pay the filing fee after being denied in
forma pauperis status. He must pay the filing fee at the time he initiates the suit.” Dupree v.
Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002).