The opinion
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
ERIC ORLANDO FOWLER,
Plaintiff,
v. Case No. 5:25-cv-123-AW/MJF
UNITED STATES OF AMERICA, et al.,
Defendants.
/
REPORT AND RECOMMENDATION
Plaintiff Eric Orlando Fowler, proceeding pro se, has filed a
complaint against the United States of America, President Donald
Trump, and the “Alien Property Custodian.” Doc. 1. Fowler has incurred
at least three “strikes” under 28 U.S.C. § 1915(g). Fowler also violated
the Local Rules insofar as he neither paid the filing fee nor moved for
leave to proceed in forma pauperis. See N.D. Fla. Loc. R. 5.3. Because
Fowler is barred by 28 U.S.C. § 1915(g) from proceeding in forma
pauperis and Fowler failed to pay the filing fee at the time he commenced
this lawsuit, the District Court should dismiss this civil action.
I. BACKGROUND
Fowler is an inmate currently confined at the Northwest Florida
Reception Center. Plaintiff seeks an order granting “conveyance,
hands of the alien property custodian or by the treasurer of the United
States or by the president or the interest therein to which” he purportedly
is entitled. Doc. 1 at 3.
II. DISCUSSION
Under the so-called “three-strikes rule” in 28 U.S.C. § 1915(g), a
prisoner is prohibited from proceeding in forma pauperis if the prisoner
previously filed three or more actions 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. 597 (2020). 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. Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002)
(per curiam); Vanderberg v. Donaldson, 259 F.3d 1321, 1324 (11th Cir.
2001). There is a narrow exception, however: a prisoner who is otherwise
barred from proceeding in forma pauperis may do so if he is in “imminent
danger of serious physical injury.” 28 U.S.C. § 1915(g); Brown v. Johnson,
387 F.3d 1344, 1349 (11th Cir. 2004).
Fowler has incurred at least three strikes under section 1915(g):
• Fowler v. Campbell, 8:18-cv-2122-CEH-CPT (M.D. Fla. Oct. 4,
2018), ECF. No. 6 (dismissing for failure to state a claim).
• Fowler v. 6th Jud. Cir., 8:18-cv-2575-MSS-JSS (M.D. Fla.
Nov. 8, 2018), ECF. No. 4 (dismissing for failure to state a
claim).
• Fowler v. State of Florida, 8:18-cv-2121-CEH-CPT (M.D. Fla.
Feb. 14, 2019), ECF. No. 9 (dismissing for failure to state a
claim).
Because he has incurred at least three strikes, Fowler was required
to pay the filing fee at the time he commenced this lawsuit, and he cannot
prosecute this case in forma pauperis unless he shows that he is “under
imminent danger of serious physical injury.” 28 U.S.C. § 1915(g); Brown,
387 F.3d at 1349. To fall within this exception, Fowler’s complaint must
include “specific, credible allegations of imminent danger of serious
physical harm.” Hafed v. Fed. Bureau of Prisons, 635 F.3d 1172, 1179
(10th Cir. 2011) (quoting another source) abrogated on other grounds by
Coleman v. Tollefson, 575 U.S. 532, 534 (2015). Fowler’s complaint fails
to allege facts which indicate that Fowler is in imminent danger of
serious physical injury. Thus, he should have paid the filing fee at the
time he commenced this lawsuit. He failed to do so. Therefore, dismissal
without prejudice is appropriate. See Dupree, 284 F.3d at 1236; N.D. Fla.
Loc. R. 41.1.
For the reasons set forth above, the undersigned respectfully
RECOMMENDS that the District Court:
1. DISMISS this action, under 28 U.S.C. § 1915(g), without
prejudice.
2. DIRECT the clerk of the court to close this case file.
At Pensacola, Florida, this 9th day of June, 2025.
/s/ Michael J. Frank
Michael J. Frank
United States Magistrate Judge
NOTICE TO THE PARTIES
The District Court referred this case to the
undersigned 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 (14)
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
and does not control. An objecting party must serve a
copy of the objections on all other parties. A party who
fails to object to the magistrate judge’s findings or
recommendations contained in a 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. Rule 3-1;
28 U.S.C. § 636. If Plaintiff disputes the accuracy of any
judicially-noticed fact he must raise this issue in an
objection to this report and recommendation.