Opinion

FOSTER v. CENTURION HEALTH CARE SERVICES

Court
District Court, N.D. Florida
Filed
Jun 17, 2025
Cited by
0 cases
Authority
More cited than 37.9%

“By using the term ‘imminent,’ Congress indicated that it wanted to include a safety valve for the ‘three strikes’ rule to prevent impending harms, not those harms that had already occurred.”

How later courts described this case

  • “By using the term ‘imminent,’ Congress indicated that it wanted to include a safety valve for the ‘three strikes’ rule to prevent impending harms, not those harms that had already occurred.”
  • explaining that a complaint that presents time-barred claims warrants dismissal as frivolous

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

GUILLERMO FOSTER,

FDOC Inmate No. 685752,

Plaintiff,

vs. Case No.: 3:25cv813/LAC/ZCB

CENTURION HEALTH CARE

SERVICES, et al.,

Defendants.

/

REPORT AND RECOMMENDATION

Plaintiff is an inmate of the Florida Department of Corrections

(FDOC). He filed this pro se civil rights action on June 9, 2025. (Doc. 1).

Upon review of Plaintiff’s litigation history, the Court has determined

that he is a three-striker. This means he was required to pay the filing

fee upon initiating this suit because he is ineligible to proceed in forma

pauperis (IFP). Plaintiff did not pay the filing fee and instead filed a

motion to proceed IFP. (Doc. 2). Because he is a three-striker and did

not pay the filing fee, this case should be dismissed.

I. Discussion

Under the three strikes provision, a prisoner cannot proceed IFP in

a civil action if he has “on 3 or more prior occasions, while incarcerated .

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. . , 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.” 28 U.S.C. § 1915(g). The statute provides a narrow exception for

instances where the prisoner is “under imminent danger of serious

physical injury.” Id.; see also Daker v. Bryson, 784 F. App’x 690, 692 (11th

Cir. 2019) (explaining that the “sole exception to the three strikes bar is

where the prisoner is under imminent danger of serious physical injury”).

A prisoner who is ineligible to proceed IFP must pay the full filing

fee when the lawsuit is filed. Dupree v. Palmer, 284 F.3d 1234, 1236 (11th

Cir. 2002). The Eleventh Circuit has explained that when the district

court determines that the prisoner is ineligible to proceed IFP pursuant

to § 1915(g), the proper procedure is for the district court to dismiss the

complaint without prejudice. Id. According to Dupree, a prisoner cannot

avoid dismissal by simply paying the filing fee at a later time because the

filing fee is due at the time the prisoner initiated the suit. Id.; see also

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

that after three meritless suits, a prisoner must pay the full filing fee at

the time he initiates suit).

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The Court has reviewed Plaintiff’s litigation history as disclosed in

the Complaint and on the federal courts’ Public Access To Court

Electronic Records (PACER) database.1 (Doc. 1 at 10-11). That review

has revealed that Plaintiff (while a prisoner) previously filed at least

three actions or appeals in federal courts that were dismissed as frivolous

or for failure to state a claim. More specifically:

• Foster v. Hollywood Police Dep’t, 1:17cv60177-UU (S.D. Fla.

Mar. 31, 2017) (dismissing Plaintiff’s complaint under 28

U.S.C. §§ 1915A and 1915(e) because it was barred by the

statute of limitations);

• Foster v. State of Fla., 0:23cv61211-CMA (S.D. Fla. June 28,

2023) (dismissing Plaintiff’s complaint under § 1915(e)(2)

because it was barred by the statute of limitations); and

• Foster v. Goldstein, et al., 0:23cv61540-RS (S.D. Fla. Aug. 16,

2023) (dismissing Plaintiff’s complaint under § 1915A for

1 Federal Rule of Evidence 201 permits a court to “judicially notice a fact

that is not subject to reasonable dispute because it . . . can be accurately

and readily determined from sources whose accuracy cannot reasonably

be questioned.” Fed. R. Evid. 201(b)(2).

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failure to state a claim upon which relief can be granted or,

alternatively, as barred by the statute of limitations).2, 3

Because Plaintiff had at least three strikes when he commenced

this case, he cannot proceed IFP and should have paid the filing fee at

the time of filing. He failed to do so. The only remaining question is

whether Plaintiff’s factual allegations support a finding that he is “under

imminent danger of serious physical injury” as required for the exception

in § 1915(g) to apply. The answer to that question is no. Here are the

reasons why.

The § 1915(g) exception requires the complaint, as a whole, to allege

imminent danger of serious physical injury. Brown v. Johnson, 387 F.3d

1344, 1350 (11th Cir. 2004). The exception requires a showing of

“specific, credible allegations of imminent-danger of serious physical

2 See Clark v. Ga. Pardons and Paroles Bd., 915 F.2d 636, 641 n.2 (11th

Cir. 1990) (explaining that a complaint that presents time-barred claims

warrants dismissal as frivolous); see also Johnson v. Greaves, 366 F.

App’x 976, 978 (11th Cir. 2010); Zammiello v. Jones, No. 4:16cv572, 2016

WL 7007536, at *2 (N.D. Fla. Oct. 25, 2016), adopted by 2016 WL

6988490, at *1 (N.D. Fla. Nov. 28, 2016) (dismissing case under § 1915(g)

because two prior cases were dismissed as time-barred and a third prior

appeal was dismissed as frivolous).

3 Plaintiff identified himself with FDOC inmate #685752 in his pleadings

in all of these cases.

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harm.” Chestnut v. Leavins, No. 3:21cv827, 2021 WL 3134392, at *6

(N.D. Fla. July 2, 2021) (cleaned up), adopted by 2021 WL 3132724 (N.D.

Fla. Jully 24, 2021). A complaint must include “specific fact allegations

of ongoing serious physical injury, or of a pattern of misconduct

evidencing the likelihood of imminent serious physical injury.” See

Sutton v. Dist. Atty’s Office, 334 F. App’x 278, 279 (11th Cir. 2009).

Additionally, the plaintiff must be in such imminent danger of

serious physical injury at the time he files the lawsuit—not at the time

of the alleged incident that gave rise to the complaint. See Medberry v.

Butler, 185 F.3d 1189, 1193 (11th Cir. 1999) (holding that because the

threat of imminent danger to the inmate “ceased prior to the filing of his

[c]omplaint,” he did not qualify for the 1915(g) imminent danger

exception); see also Abdul-Akbar v. McKelvie, 239 F.3d 307, 315 (3d Cir.

2001) (“By using the term ‘imminent,’ Congress indicated that it wanted

to include a safety valve for the ‘three strikes’ rule to prevent impending

harms, not those harms that had already occurred.”).

Here, Plaintiff’s allegations involve past harms. He alleges

Defendants failed to treat his high cholesterol in March or April 2023.

(Doc. 1 at 8-9). According to Plaintiff, this caused a series of strokes on

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August 6-11, 2023. (Id. at 3-7). Defendants initially failed to properly

diagnose or treat the strokes, but medical staff eventually sent him to a

hospital on August 12, 2023. (Id. at 3-8). Hospital staff properly

diagnosed and treated the strokes. (Id. at 7-8). Plaintiff was returned to

his institution on August 15, 2023. (Id. at 8). Defendants provided

assistive devices and medication but did not provide therapy or other

“medical assistance.” (Id.). Plaintiff seeks retrospective relief

(compensatory and punitive damages) for Defendants’ delay in

diagnosing and treating his condition. (Id. at 9). He does not allege he

is under any threat of impending harm. Because Plaintiff’s allegations

do not indicate he was in imminent danger of serious physical injury

when he filed this lawsuit in June 2025, he does not qualify for the safety

valve of the imminent danger exception to the three-strikes bar. See

Medberry, 185 F.3d at 1193.

II. Conclusion

Plaintiff is a three-striker. He did not pay the filing fee when he

filed his complaint. And has not satisfied the “imminent danger”

exception under § 1915(g). For these reasons, dismissal of the complaint

without prejudice is appropriate.

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Accordingly, it is respectfully RECOMMENDED that:

1. This action be DISMISSED without prejudice, under 28

U.S.C. § 1915(g), based on Plaintiff’s failure to pay the filing fee when he

commenced this case.

2. All pending motions be DENIED as moot.

3. The Clerk of Court be directed to enter judgment accordingly

and close this case.

At Pensacola, Florida this 17th day of June 2025.

/s/ Zachary C. Bolitho

Zachary C. Bolitho

United States Magistrate Judge

Notice to the Parties

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 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.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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