MARTINEZ

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

JOSHUA ISAAC MARTINEZ,

Plaintiff,

v. Case No. 4:26-cv-9-AW-MJF

OFFICER COOPER, et al.,

Defendants.

/

REPORT AND RECOMMENDATION

In this civil action, Plaintiff is suing six prison officials of the Taylor

Correctional Institution for alleged violations of the First, Fourth,

Eighth, and Fourteenth Amendments of the United States Constitution.

Doc. 1 at 3. The undersigned recommends that the District Court dismiss

this case under 28 U.S.C. § 1915(g).

PLAINTIFF’S COMPLAINT

Plaintiff is an inmate of the Florida Department of Corrections

(“FDC”) currently housed at Cross City Correctional Institution. Doc. 1.

Plaintiff was formerly housed at Taylor Correctional Institution. Id.

Plaintiff initiated this civil action on January 9, 2026, by filing a civil-

rights complaint and a motion for leave to proceed in forma pauperis.

Docs. 1, 2. Plaintiff alleges that on July 10, 2025, while housed at the

Taylor Correctional Institution, one or more Defendants “invidiously

discriminated against [him]” by physically harming Plaintiff because of

his status as a “Judeo-Christian holding a Bible” and acted with “reckless

disregard” in doing so. Doc. 1 at 6. Plaintiff also seeks to hold various

supervisory Defendants liable for allegedly “cover[ing] the incident up.”

Id.

DISCUSSION

A party who files a civil case must simultaneously pay any fee

required under 28 U.S.C. § 1914, or more for leave to proceed in forma

pauperis under 28 U.S.C. § 1915. See 28 U.S.C. § 1914; 28 U.S.C. § 1915;

N.D. Fla. Loc. R. 5.3. 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 files his case, 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 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 undersigned takes

judicial notice that Plaintiff filed the following civil actions while

incarcerated in the FDC that were dismissed as frivolous or for failure to

state a claim on which relief can be granted:

• Martinez v. United States, No. 1:25-cv-3-AW-HTC, 2025 WL 551867

(N.D. Fla. Feb. 19, 2025) (civil-rights action dismissed as frivolous,

among other reasons); and

• Martinez v. Dixon, No. 1:24-cv-21-MW-MAF, 2024 WL 2723875

(N.D. Fla. May 28, 2024) (civil-rights action dismissed for failure to

state a claim on which relief can be granted), appeal docketed, No.

24-12000 (11th Cir. 2024).1

1 A prior dismissal on a ground enumerated in 28 U.S.C. § 1915(g) counts

as a strike even if the dismissal is the subject of an appeal. Coleman v.

Tollefson, 575 U.S. 532, 534, 541 (2015).

In addition, Plaintiff filed the following appeal while incarcerated in

the FDC that was dismissed as frivolous:

• Martinez v. United States of America, No. 25-10702 (11th Cir. Aug.

1, 2025) (dismissing appeal of the judgment in No. 1:25-cv-3-AW-

HTC, as frivolous) (copy at No. 1:25-cv-3, Doc. 30).

These cases qualify as “strikes” under § 1915(g). These cases are

attributable to Plaintiff insofar as they bear his name and inmate

number (DC#V44831). Plaintiff also acknowledges that federal courts

previously have dismissed Plaintiff’s cases because of the “three strikes

rule.” Doc. 1 at 13.

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)].”).

In determining whether a prisoner has proved imminent danger of

serious physical injury, the court “looks to the complaint, construing it

liberally and accepting its allegations as true.” Daker, 999 F.3d at 1311.

“General assertions, however, are insufficient to invoke the exception to

§ 1915(g) absent specific fact allegations of ongoing serious physical

injury, or of a pattern of misconduct evidencing the likelihood of

imminent serious physical injury.” Id. (internal quotation marks and

citation omitted).

Plaintiff’s allegations concern a past incident of discrimination and

physical harm that occurred at another correctional institution. Plaintiff

does not allege an ongoing threat of physical harm. Therefore, Plaintiff’s

allegations do not satisfy the high bar § 1915(g) has set for prisoners who

have incurred three strikes to proceed in forma pauperis. The “imminent

danger” exception is available “for genuine emergencies,” where “time is

pressing” and “a threat . . . is real and proximate.” Lewis v. Sullivan, 279

F.3d 526, 531 (7th Cir. 2002). No such showing has been made here.

Because Plaintiff is barred from proceeding in forma pauperis and

failed to pay the filing fee at the time he initiated this lawsuit, the

District Court must dismiss this case under 28 U.S.C. § 1915(g). See

Dupree, 284 F.3d at 1236.

CONCLUSION

For the reasons set forth above, the undersigned respectfully

RECOMMENDS that the District Court:

1. DENY Plaintiff’s motion for leave to proceed in forma

pauperis, Doc. 2.

2. DISMISS this civil action without prejudice under 28 U.S.C.

§ 1915(g).

3. DIRECT the clerk of court to close this case file.

At Pensacola, Florida, this 22nd day of January, 2026.

/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 address all 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 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.