“[The plaintiff’s] allegations of attacks at the facility to which he was transferred were insufficient to invoke the ‘imminent danger’ exception[.]”
How later courts described this case
- “[The plaintiff’s] allegations of attacks at the facility to which he was transferred were insufficient to invoke the ‘imminent danger’ exception[.]”
- “We conclude that these types of general assertions, even construed liberally, are ‘insufficient to invoke the exception to § 1915(g
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 23-CV-20993-RAR
MICHAEL A. LORUSSO,
Plaintiff,
v.
RON DESANTIS,
GOVERNOR OF FLORIDA,
Defendant.
___________________________________/
ORDER DISMISSING COMPLAINT
THIS CAUSE comes before the Court on Plaintiff Michael A. LoRusso’s pro se
Complaint filed pursuant to 42 U.S.C. § 1983. See Complaint (“Compl.”) [ECF No. 1]. Plaintiff
has neither paid the filing fee nor filed a motion to proceed in forma pauperis. See generally
Docket. Plaintiff alleges that the Governor of Florida, Ron DeSantis, has neglected his duty—and
violated Plaintiff’s constitutional rights—by allowing the carceral facilities operated by the Florida
Department of Corrections to become “out of control with drugs, drug activities, gangs, [and]
widespread homosexual activities with no type of control by staff or administration.” Id. at 1.
Without addressing the merits of Plaintiff’s Complaint, the Court finds that Plaintiff is not entitled
to initiate a suit in federal court without prepaying the entire filing fee since he has a long history
of filing meritless lawsuits; therefore, Plaintiff’s Complaint must be DISMISSED without
prejudice.
“To commence a civil lawsuit in federal district court, the general rule is that initiating
parties must prepay a filing fee.” Rivera v. Allin, 144 F.3d 719, 722 (11th Cir. 1998) (citing 28
U.S.C. § 1914(a)), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007). A person
that is “unable to pay such fees or give security therefor” can avoid prepaying the filing fee by
filing a motion to proceed IFP. 28 U.S.C. § 1915(a). However, the statute also provides a major
exception to this rule:
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 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.
Id. § 1915(g). The purpose of this provision, also known as the “three-strikes rule,” is “to curtail
abusive prisoner litigation” by only allowing “a prisoner to file three meritless suits at the reduced
rate provided by that section. After the third meritless suit, the prisoner must pay the full filing
fee at the time he initiates suit.” Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (quoting
Vanderberg v. Donaldson, 259 F.3d 1321, 1324 (11th Cir. 2001)). If, after receiving three
“strikes,” a prisoner files a new suit while moving to proceed IFP, “a court must dismiss the
prisoner’s case.” Medberry v. Butler, 185 F.3d 1189, 1192 (11th Cir. 1999).
Although Plaintiff has not been a frequent filer in this Court, other federal courts
(particularly in Florida) have documented his litigious history and conclusively determined that he
qualifies as a “three-striker” under § 1915(g). See, e.g., LoRusso v. Judd, No. 22-CV-2954, 2023
WL 23078, at *1 (M.D. Fla. Jan. 3, 2023) (“Plaintiff has at least three prior cases that count as
‘strikes’ because they were dismissed as frivolous, malicious, or for failure to state a claim upon
which relief may be granted.”); LoRusso v. Att’y Gen., No. 22-CV-1045, 2022 WL 2870475, at *1
(M.D. Fla. July 21, 2022) (“Plaintiff’s prior cases [were] dismissed as either frivolous, malicious,
or for failure to state a claim . . . . [H]e has had three prior dismissals that qualify under Section
1915(g).”); LoRusso v. Gualteni, No. 22-CV-421, 2022 WL 18103301, at *1 (N.D. Fla. Dec. 2,
2022) (describing Plaintiff’s history of filing frivolous lawsuits in the Middle District of Florida,
Northern District of Florida, Middle District of Georgia, and Northern District of Alabama), report
and recommendation adopted, 2023 WL 359504 (N.D. Fla. Jan. 23, 2023). The Court adopts the
findings of its sister courts and concludes that Plaintiff qualifies as a “three-striker” based on his
lengthy history of meritless, frivolous, and/or malicious lawsuits.
The only exception to the three-strikes rule is when the prisoner alleges that “he is under
imminent danger of serious physical injury.” Medberry, 185 F.3d at 1192. The plaintiff must
affirmatively “allege facts showing that he was in any danger of imminent harm” at the time he
filed his complaint. White v. Lemma, 947 F.3d 1373, 1379 (11th Cir. 2020). Plaintiff has attempted
to meet this burden, arguing that the conditions at Dade Correctional Institution present an inherent
danger. See Compl. at 5 (“Dade Correctional is just last year that a inmate in the mental health
unit was beaten to death by four officers.” (errors in original)); id. at 17 (“Petitioner is currently in
the ‘cesspool’ of the Florida Department of Corrections where Respondent has allowed the illegal
flow of drugs to enter the Florida Department of Corrections.”). He also references several other
violent incidents which purportedly took place at other Department of Corrections facilities. See
id. at 6 (alleging that correctional officers at Lowell Correctional Institution “beat a female inmate
so severely that she is paralyzed”). Finally, Plaintiff claims that he is improperly confined “to the
mental health unit [even though he] is not a mental health patient.” Id. at 5.
These allegations, serious as they may be, do not meet the “imminent danger” standard
since Plaintiff has only alleged physical harm that befell other inmates—not himself. See Owens
v. Schwartz, 519 F. App’x 992, 994 (11th Cir. 2013) (“[The plaintiff’s] allegations of attacks at
the facility to which he was transferred were insufficient to invoke the ‘imminent danger’
exception[.]”); Veteto v. Clerks, Judges, and Justices of Ala. Cts., No. 17-CV-689, 2017 WL
6617051, at *3 (N.D. Ala. Oct. 19, 2017) (rejecting the “overall violent nature of prison conditions,
including the potential for assaults, rapes, thefts, extortion, discrimination, and harassment” as a
basis for alleging imminent danger). In short, Plaintiffs “allegations of future harm . . . are [too]
speculative to meet the imminent danger standard” as the “dangers” described by Plaintiff are no
more than supposed systemic issues within the Florida Department of Corrections. Daker v.
Robinson, 802 F. App’x 513, 515 (11th Cir. 2020) (citing Pettus v. Morgenthau, 554 F.3d 293,
297 (2d Cir. 2009)); see also Sutton v. Dist. Att’y Off, of Gwinnett Sup. Ct., Ga., 334 F. App’x
278, 279 (11th Cir. 2009) (“We conclude that these types of general assertions, even construed
liberally, 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.’” (quoting Brown v. Johnson, 387 F.3d 1344, 1350 (11th Cir.
2004))). Since Plaintiff has failed to allege that he is in imminent danger, the Court shall dismiss
the Complaint under § 1915(g)’s three-strikes provision.
CONCLUSION
Based on the foregoing, it is hereby ORDERED AND ADJUDGED that the Complaint
[ECF No. 1] is DISMISSED without prejudice pursuant to 28 U.S.C. § 1915(g). All pending
motions are DENIED as moot and all deadlines, if any, are TERMINATED. This case is
CLOSED.
DONE AND ORDERED in Miami, Florida, this 15th day of March, 2023.
UNITED STATES DISTRICT JUDGE
Page 4 of 4