“[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.”
- “To help staunch a ‘flood of nonmeritorious’ prisoner litigation, the Prison Litigation Reform Act of 1995 (PLRA) established what has become known as the three-strikes rule.” (citation omitted)
- “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.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MATTHEW LEO JACKSON FAISON,
JR.,
Plaintiff,
v. Case No. 2:24-cv-1017-JLB-KCD
JANET YELLEN, JOHN SMITH
DOE, LISA TAYLOR, and LARRY
BOKER MOE,
Defendants.
/
ORDER
Before the Court is Plaintiff Matthew Leo Jackson Faison, Jr.’s civil rights
complaint. (Doc. 1.) As a prisoner, Plaintiff moves to proceed in forma pauperis.
(Doc. 2.) Because the Court finds Plaintiff to be barred from doing so under 28
U.S.C. § 1915(g), it dismisses this action without prejudice.
Under section 1915(g), a prisoner cannot proceed in forma pauperis if he “on
3 or more prior occasions, while incarcerated or detained in any facility, brought an
action or appeal in a [federal] court . . . 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); see Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 1723 (2020) (“To
help staunch a ‘flood of nonmeritorious’ prisoner litigation, the Prison Litigation
Reform Act of 1995 (PLRA) established what has become known as the three-strikes
rule.” (citation omitted)). And “[a] dismissal of a suit for failure to state a claim
counts as a strike, whether or not with prejudice.” Lomax, 140 S. Ct. at 1727.
A search of the United State Court’s Public Access to Court Electronic
Records system reveals that the district courts in Florida have deemed Plaintiff a
“three-striker” under 28 U.S.C. § 1915(g) on multiple occasions, including Faison v.
United States, No. 1:23-cv-20781-KMM, ECF 4 (S.D. Fla. Mar. 6, 2023), Faison v.
United States Attorney General, et al., No. 5:09-cv-404-RS/AK, ECF 9 (N.D. Fla.
Mar. 9, 2010); Faison v. Office of Executive Clemency Board, No. 3:12-cv-319-J-
37JBT, ECF 3 (M.D. Fla. Mar. 27, 2012); Faison v. Doe, No. 1:20-cv-20668-BB, ECF
7 (S.D. Fla. Feb. 20, 2000), and Faison v. State of Fla., No. 1:19-cv-25264-DPG, ECF
7 (S.D. Fla. Jan. 29, 2000).
Plaintiff alleges that section 1915(g)’s “imminent danger” exception applies
here because he is “under imminent danger of serious physical injury of second-
hand smoke or environmental tobacco smoke (ETS) that pose[s] an unreasonable
risk of serious damage to [his] future health.” (Doc. 1 at 3.) However, he names
only several Internal Revenue Service employees and the United States secretary of
the treasury as defendants, and his allegations appear to be aimed solely at the
United States’ misguided monetary policies. (Id. at 2–3, 4–5.) In short, Plaintiff’s
allegations regarding his exposure to second-hand smoke are unrelated to the
claims that make up the gravamen of his complaint and do not invoke an exception
to section 1915(g). See Daker v. Robinson, 802 F. App'x 513, 515 (11th Cir. 2020)
(explaining that the allegations of imminent danger must be related to “the crux of
the complaint”) (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.”)).
As Plaintiff has numerous qualifying “strikes” and did not sufficiently allege
that he is under “imminent danger,” he is barred from proceeding in forma
pauperis. Thus, he should have paid the full filing fee at the time of initiating this
action, but he did not do so. This warrants dismissal under section 1915(g).
Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (“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.”). If Plaintiff wishes to pursue his
claim(s), he must file a new complaint—under a new case number—and pay the
$405.00 filing fee.
Accordingly, it is ORDERED:
1. The complaint (Doc. 1) is DISMISSED without prejudice under 28
U.S.C. § 1915(g).
2. The Clerk is DIRECTED to enter judgment, deny as moot any
pending motions, and close this file.
DONE and ORDERED in Fort Myers, Florida on November 20, 2024.
yes bbe
UNITED STATES DISTRICT JUDGE
Copies: Matthew Leo Jackson Faison, Jr.