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 the inmate initiates suit
How later courts described this case
- 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 the inmate initiates suit
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
NYKA O’CONNOR,
Plaintiff,
v. Case No. 5:25-cv-204-TKW-MJF
HARDBOWER, et al.,
Defendants.
/
REPORT AND RECOMMENDATION
On July 28, 2025, Nyka O’Connor submitted a filing to the United
States District Court for the Middle District of Florida titled, “Notice of
Intent to Sue.” Doc. 1. The Middle District construed the filing as a civil-
rights complaint and transferred the case to this District Court. The
undersigned recommends that the District Court dismiss this case under
28 U.S.C. § 1915(g).
I. PLAINTIFF’S COMPLAINT
Plaintiff is an inmate of the Florida Department of Corrections
(“FDC”) housed at the Apalachee Correctional Institution. Doc. 1.
Plaintiff is suing four prison officials at the Apalachee CI. Plaintiff
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alleges that on May 25, 2025, Defendants threw his and other inmates’
personal and legal property on the floor and damaged it. Doc. 1.
Defendants’ conduct caused Plaintiff emotional distress. Plaintiff’s filing
was not accompanied by the $405.00 filing fee or a motion for leave to
proceed in forma pauperis.
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 on which
relief can be granted. 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 the
prisoner initiates the prisoner’s lawsuit, and failure to do so warrants
dismissal of the case without prejudice. See 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 the inmate initiates suit); Vanderberg v. Donaldson,
259 F.3d 1321, 1324 (11th Cir. 2001). The only exception is if the prisoner
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alleges that the prisoner 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. Plaintiff Has Accrued At Least Three “Strikes”
Pursuant to Federal Rule of Evidence 201, the court takes judicial
notice that Plaintiff filed the following civil actions while incarcerated in
the FDC that were dismissed for failure to state a claim on which relief
can be granted:
• O’Connor v. State of Florida, 3:06-cv-10-RV-MD (N.D. Fla.
Mar. 29, 2006) (civil rights action dismissed for failure to
state a claim because complaint’s allegations and
attachments showed that recovery was barred by affirmative
defense of failure to exhaust administrative remedies).
• O’Connor v. State of Florida, No. 3:06-cv-45-RV-EMT (N.D.
Fla. Sept. 22, 2006) (civil rights action dismissed for failure to
state a claim because allegations failed to state a
constitutional violation).
• O’Connor v. FDOC, No. 3:08-cv-357-LC-WCS (N.D. Fla. Feb.
20, 2009 (same).
Each case bears Plaintiff’s FDC inmate number, “199579.” The
foregoing cases qualify as “strikes” under § 1915(g), because they are civil
actions Plaintiff filed while incarcerated in the FDC that were dismissed
for failure to state a claim.
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Because Plaintiff has accrued at least three strikes, he may not
litigate this case in forma pauperis and was required to pay the filing fee
at case initiation, unless his allegations demonstrate that he is “under
imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).
B. Plaintiff Fails to Satisfy the Imminent-Danger Exception
To satisfy the “imminent danger” exception, “the prisoner must
show 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 danger will not invoke the exception. Medberry, 185
F.3d at 1193 (“[A] prisoner’s allegation that he faced imminent danger
sometime in the past is an insufficient basis to allow him to proceed in
forma pauperis pursuant to the imminent danger exception to [§
1915(g)].”).
Plaintiff’s allegations—that over two months ago the Defendants
mishandled Plaintiff’s property—do not establish that Plaintiff is in
imminent danger of serious physical injury.
Because Plaintiff is barred from proceeding in forma pauperis and
failed to pay the filing fee at the time he initiated this lawsuit, the
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District Court must dismiss this case without prejudice under 28 U.S.C.
§ 1915(g). See Dupree, 284 F.3d at 1236.
III. CONCLUSION
For the reasons set forth above, the undersigned respectfully
RECOMMENDS that the District Court:
1. DISMISS this civil action without prejudice under 28 U.S.C.
§ 1915(g).
2. DIRECT the clerk of court to close this case file.
At Panama City, Florida, this 8th day of August, 2025.
/s/ Michael J. Frank
Michael J. Frank
United States Magistrate Judge
NOTICE TO THE PARTIES
The District Court referred this case to a magistrate
judge to make recommendations regarding dispositive
matters. See 28 U.S.C. § 636(b)(1)(B), (C). 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.
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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 District Court taking
judicial notice of that fact, they must raise this issue in
an objection to this report and recommendation.
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