WRIGHT v. BROWN

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

WALTER LEE WRIGHT,

Plaintiff,

v. Case No. 5:24-cv-215-MW-MJF

SERGEANT BROWN, et al.,

Defendants.

/

REPORT AND RECOMMENDATION

Walter Lee Wright, a Florida prisoner proceeding pro se, has filed a

complaint under 42 U.S.C. § 1983. Doc. 1. The undersigned recommends

that this action be dismissed because Wright is a prisoner who has

incurred at least three strikes, is barred by 28 U.S.C. § 1915(g) from

proceeding in forma pauperis, and failed to pay the filing fee at the time

he filed this lawsuit.

I. WRIGHT’S COMPLAINT

Wright, DC # B04096, is confined at the Walton Correctional

Institution. Doc. 1 at 1-2. Wright is suing two correctional officers at the

Holmes Correctional Institution: Sergeant Brown and Officer Golden. Id.

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Wright claims that on August 14, 2020, Brown and Golden used excessive

force on Wright when they peppered-sprayed him for disobeying an order.

Id. at 5-7. Wright seeks punitive damages. Id. at 7.

Wright has not paid the filing fee or filed a motion for leave to

proceed in forma pauperis. See N.D. Fla. Loc. R. 5.3 (“A party who files

or removes 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.”). As discussed below, Wright is not eligible to

proceed in forma pauperis and was required to remit the full filing fee

with his complaint.

II. DISCUSSION

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. 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 he initiates his lawsuit, and

failure to do so warrants dismissal of his case without prejudice. See

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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 he initiates suit);

Vanderberg v. Donaldson, 259 F.3d 1321, 1324 (11th Cir. 2001). The only

exception is if the prisoner alleges that he 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. Wright Has Three “Strikes”

Wright has accrued at least three strikes, as recognized by a district

judge of the Northern District of Florida. See Wright v. Gunter, No. 3:22-

cv-2888-LC-HTC, 2022 WL 1262551 (N.D. Fla. Apr. 28, 2022) (dismissing

Wright’s civil rights action under three-strikes provision of 28 U.S.C. §

1915(g), and as malicious). The undersigned takes judicial notice that the

following two actions and appeal filed by Wright while incarcerated were

dismissed as frivolous or for failure to state a claim:

● Wright v. Miranda, No. 1:17-cv-24398-DPG, 2018 WL 692413

(S.D. Fla. Feb. 2, 2018) (civil rights action dismissed under 28

U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim), aff’d, 740

F. App’x 692 (11th Cir. July 10, 2018);

● Wright v. Martin, No. 17-12014 (11th Cir. Dec. 19, 2017) (appeal

dismissed as frivolous);

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● Wright v. Pearson, No. 1:17-cv-24338-UU, 2018 WL 10229912

(S.D. Fla. Jan. 22, 2018) (civil rights action dismissed under 28

U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim), aff’d, 747

F. App’x 812 (11th Cir. 2018).

All of the foregoing cases bear Wright’s DC# B04096. All of the

foregoing strikes were entered before Wright filed this lawsuit.

Because Wright has incurred three strikes, he may not litigate this

case in forma pauperis unless he demonstrates that he is “under

imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).

B. Wright Fails to Satisfy the Imminent-Danger Exception

To satisfy the “imminent danger” exception, “the prisoner must

show that he is in imminent danger ‘at the time that he seeks to file his

suit in district court.’” Daker v. Ward, 999 F.3d 1300, 1310–11 (11th Cir.

2021) (quoting Medberry v. Butler, 185 F.3d 1189, 1192–93 (11th Cir.

1999)). An allegation of past imminent danger will not invoke the

exception. Medberry, 185 F.3d at 1193.

Wright’s allegations—that officers at a different prison sprayed

him with pepper spray over four years ago—do not demonstrate that

Wright is in imminent danger of serious physical injury. Because Wright

is barred from proceeding in forma pauperis and failed to pay the filing

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fee at the time he initiated this lawsuit, the District Court must dismiss

this case under 28 U.S.C. § 1915(g).1

III. CONCLUSION

For the reasons set forth above, the undersigned respectfully

RECOMMENDS that:

1. This action be DISMISSED without prejudice pursuant to 28

U.S.C. § 1915(g).

2. The clerk of court close this case file.

At Panama City, Florida, this 23rd day of September, 2024.

/s/ Michael J. Frank

Michael J. Frank

United States Magistrate Judge

NOTICE TO THE PARTIES

1 An alternative basis for dismissing this case with prejudice is that the

four-year statute-of-limitations bar is apparent from the face of Wright’s

complaint. Florida’s four-year statute of limitations for personal injuries

applies to claims for deprivations of rights under section 1983. Chappell

v. Rich, 340 F.3d 1279, 1283 (11th Cir. 2003). A section 1983 claim

accrues—and the statute of limitations begins to run—when “the facts

which would support a cause of action are apparent or should be apparent

to a person with a reasonably prudent regard for his rights.” Mullinax v.

McElhenney, 817 F.2d 711, 716 (11th Cir. 1987) (internal quotation

marks and citation omitted). The use of force occurred on August 14,

2020. Wright filed his complaint on September 13, 2024.

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The District Court referred this case to the

undersigned to address preliminary matters and to

make recommendations regarding dispositive matters.

See N.D. Fla. Loc. R. 72.2; see also 28 U.S.C.

§ 636(b)(1)(B), (C); Fed. R. Civ. P. 72(b). 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 court taking judicial

notice of that fact, they must raise this issue in an

objection to this report and recommendation.

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