“[T]he statute requires that the prisoner’s complaint seek to redress an imminent danger of serious physical injury and that this danger must be fairly traceable to a violation of law alleged in the complaint.”
How later courts described this case
- “[T]he statute requires that the prisoner’s complaint seek to redress an imminent danger of serious physical injury and that this danger must be fairly traceable to a violation of law alleged in the complaint.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
MICHAEL S. GORBEY,
Plaintiff,
v. Case No: 5:23-cv-429-WFJ-PRL
BRIAN J. DAVIS, et al.,
Defendants.
ORDER
THIS CAUSE is before the Court on Plaintiff Michael S. Gorbey’s Civil Rights
Complaint filed pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388
(1971), (Doc. 1), in which he raises four conditions of confinement claims and two
claims related to medical care.1 Plaintiff also seeks leave to proceed in forma pauperis
under 28 U.S.C. § 1915. (Doc. 2).
Section 1915(g) of Title 28 limits a prisoner’s ability to bring a civil action in
forma pauperis under certain circumstances:
(g) In no 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
1 The Complaint contains the following claims: (1) denial of access to court due to
previous case being dismissed after judge found § 1915(g) exception did not apply; (2) denial
of glaucoma treatment; (3) denial of protective custody; (4) complaint of “subhuman
conditions”; (5) denial of prescribed medications related to his “persisting cough, runny nose
and chest congestion” and the denial of certain medications while housed in the Special
Housing Unit (“SHU”); and (6) tampering with mail. See Doc. 1 at 3.
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 filings previously brought by Plaintiff that were
dismissed as frivolous, malicious, or for failure to state a claim upon which relief may
be granted. Plaintiff is a three-strikes litigant pursuant to 28 U.S.C. § 1915(g). See Order
(Doc. 4), Gorbey v. Federal Bureau of Prisons, et al., Case No. 5:10-cv-309-CEH-GRJ
(M.D. Fla. July 28, 2010) (finding that Plaintiff has previously been designated a three-
strikes litigant). Accordingly, Plaintiff is barred from proceeding as a pauper in a civil
action unless he is under “imminent danger of serious physical injury.” 28 U.S.C. §
1915(g).
Plaintiff broadly states that he is entitled to the imminent danger exception.
Plaintiff’s allegations involving the conditions of confinement claims are insufficient
to show he is under imminent danger of serious physical injury. Plaintiff’s complaints
that he is being denied access to court due to previous case’s dismissal pursuant to 28
U.S.C. 1915(g), his past interactions with inmates, being able to shower only once a
week, harassing cell searches, and allegations of mail tampering do not meet this
standard. Allegations of “past harm is insufficient to meet the imminent-danger
requirement.” Daker v. Robinson, 802 F. App'x 513, 515 (11th Cir. 2020) (citing
Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999)). Further, the allegations of
imminent danger must be related to the crux of the claim. Id. (citing Pettus v.
Morgenthau, 554 F.3d 293, 297 (2d Cir. 2009) (“[T]he statute requires that the
prisoner’s complaint seek to redress an imminent danger of serious physical injury and
that this danger must be fairly traceable to a violation of law alleged in the
complaint.”).
Plaintiff’s claims related to the denial of medical care present a closer call. We
liberally construe and accept the allegations as true in pro se pleadings when
determining whether the plaintiff falls within the imminent danger exception. Mitchell
v. Nobles, 873 F.3d 869, 874 (11th Cir. 2017); Brown v. Johnson, 387 F.3d 1344, 1350
(11th Cir. 2004). Here, Plaintiff claims that he suffers from “advanced stage” glaucoma
that “threat[ens] total blindness.” (Doc. 1 at 7). He states that he has gone
approximately 26 months without any ophthalmology exams or pressure checks. Id.
at 7–8. He further claims that he was prescribed ophthalmology care six months ago
and is still waiting for that treatment. Id. However, Plaintiff undercuts his allegations
of imminent danger by stating that “surgeries could blind him faster and drops and
pills don’t help him it’s clear that (Gorbey’s) advance condition requires he have
medical marijuana.” Id. at 9 (emphasis in original). Therefore, Plaintiff’s claims are
insufficient to meet the imminent danger exception because he claims that the
treatment the Bureau of Prisons would provide would neither help his condition nor
prevent it from worsening.”
Finally, Plaintiff's claim related to being denied medication for his current
illness—cough, runny nose, chest congestion—fails to meet the imminent danger
exception. Any potential future harm is too speculative as Plaintiff admits that it
“could turn” into something more serious. (Doc. | at 14).
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 July 31, 2023.
WILLIAM F. iS
UNITED STATES DISTRICT JUDGE
Copies furnished to:
Pro Se Plaintiff
Counsel of Record
* The Court takes notice of Feather-Gorbey v. Warden, Case Nos. 5:21-cv-367; 5:21-cv-
387; 5:21-cv-492 (S.D. W. Va.). There, the Court found “that the limited resources of this
Court should not be further spent dealing with any future lawsuits by Petitioner against
Government officials and staff of FCI Beckley regarding the alleged violation of .. .
Petitioner’s Eighth Amendment rights by denying him proper medical treatment for his
glaucoma...” See Feather-Gorbey v. Warden, 2021 WL 6805882, at *2 (S.D. W. Va. Nov. 30,
2021) rep. and recommendation adopted 2022 WL 351674 (S.D. W. Va. Feb. 4, 2022) (enjoining
Gorbey from filing any new civil action in the United States District Court for the Southern
District of West Virginia relating to the deprivation of his constitutional rights through the
alleged bias, prejudice, or collusion of government actors unless he first obtains leave of Court,
pays the filing fee in full, or files through a licensed attorney)