LORUSSO

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

MICHAEL ANTHONY LORUSSO,

Plaintiff,

v. Case No. 4:26-cv-5-TKW-MJF

SECRETARY FLORIDA

DEPARTMENT OF CHILDREN

AND FAMILY SERVICES, et al.,

Defendants.

/

REPORT AND RECOMMENDATION

The District Court should dismiss this case because: (1) Plaintiff

Michael LoRusso has incurred three strikes and failed to pay the filing

fee; (2) LoRusso fails to state a plausible claim for relief; and (3)

LoRusso’s attempt to change this § 1983 action into a petition for a writ

of habeas corpus fails because his proposed habeas petition is duplicative

of a petition already pending in this District.

BACKGROUND

LoRusso is a pre-trial detainee who currently is confined at the

North Florida Evaluation and Treatment Center pursuant to a Florida

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court adjudging him incompetent to stand trial in Pinellas County Circuit

Court Case No. 24-06524-CF.

A. The District Court’s Order to Screen LoRusso’s Petitions

LoRusso is a frequent filer in the Northern District of Florida. He

has filed more than sixty cases in this District, and many were dismissed

as improvidently filed, frivolous, or duplicative of already pending habeas

petitions.

Because LoRusso was abusing the judicial process, on October 14,

2025, the District Court ordered the clerk of the court to (1) “return to

Petitioner without filing any future documents seeking habeas relief that

are not accompanied by the filing fee or a complete IFP motion”; and (2)

“either return to Petitioner or refer to the division duty magistrate judge

for pre-filing screening any future documents received from Petitioner

that do not contain an existing case number.” See LoRusso v. Sec’y of

Families of Children Services, No. 1:25-cv-281-TKW-HTC, ECF No. 6,

(N.D. Fla.).

B. LoRusso Commences this Civil Action

LoRusso commenced this civil action pursuant to 42 U.S.C. § 1983

by filing a “complaint for violation of civil rights (prisoner complaint)”

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and a “supplement to the complaint” in the United States District Court

for the Middle District of Florida. Docs. 1, 2. In his complaint, LoRusso

names as Defendants the secretary of the Florida Children and Family

Services, the secretary of the Florida Department of Corrections, and

Centurion Medical Services. Doc. 1.

LoRusso alleges that Defendants violated federal law when they

falsified medical records to reflect that LoRusso has a mental illness and

lied to the federal judge presiding over one of his previously filed civil

cases: LoRusso v. Sec’y, Dep’t of Corr., No. 8:22-cv-2258-MSS-TGW (M.D.

Fla).1 Doc. 1 at 4. LoRusso also alleges that “Defendant engaged in a

conspiracy to deny Petition right to [illegible] expression of forged

information [illegible] the arrest warrant.” Id. at 3 (errors in original).

For relief, LoRusso seeks $125 million and the criminal prosecution of

Defendants. Id. at 5.

LoRusso’s “supplement” to the complaint is titled “Petition for Writt

of Habeas Corpus 28 U.S.C. § 2241.” Doc. 2. LoRusso’s supplement is

1 Filings in that case bear LoRusso’s FDC inmate number “345454.” See

No. 8:22-cv-2258-MSS-TGW, ECF No. 82-1.

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nonsensical and rambling. It offers no basis for challenging his pretrial

detention.2

The District Court for the Middle District of Florida construed

LoRusso’s filings as a civil rights complaint under 42 U.S.C. § 1983.

Judge Carlos E. Mendoza transferred the action to the Northern District

of Florida. Doc. 4.

B. The Undersigned’s Order to Show Cause

Because the District Court’s pre-screening injunction did not

explicitly apply to civil rights actions filed by LoRusso, and because

LoRusso had not paid the filing fee or filed a motion for leave to proceed

in forma pauperis, the undersigned ordered LoRusso to show cause why

this case should not be dismissed. Doc. 7. The undersigned also ordered

LoRusso to pay the filing fee or move for leave to proceed in forma

pauperis.

2 Had LoRusso submitted this “supplement” for filing in the United

States District Court for the Northern District of Florida, the clerk of the

court would have returned the filing pursuant to the District Court’s

order in LoRusso v. Sec’y of Families of Children Services, No. 1:25-cv-

281-TKW-HTC.

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C. LoRusso’s Motion for Leave to Proceed In Forma Pauperis

and Amended Habeas Petition

LoRusso filed a motion for leave to proceed in forma pauperis and a

proposed amended petition for writ of habeas corpus pursuant to 28

U.S.C. § 2241. Docs. 9 & 10. In his proposed amended petition, LoRusso

seeks to challenge the criminal proceedings in Pinellas County Circuit

Court Case No. 24-06524-CF.

DISCUSSION

A. Dismissal Under 28 U.S.C. § 1915(g)

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 may 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. See Dupree v. Palmer, 284 F.3d 1234, 1236 (11th

Cir. 2002); Vanderberg v. Donaldson, 259 F.3d 1321, 1324 (11th Cir.

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2001). An exception exists when a 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).

1. LoRusso Has Accrued at Least Three “Strikes”

Pursuant to Federal Rule of Evidence 201, the undersigned takes

judicial notice that LoRusso 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 may be granted:

• LoRusso v. Ga. Dep’t of Corr., No. 1:03-cv-190 (M.D. Ga.)

(dismissed as frivolous on December 30, 2003);

• LoRusso v Johnson, et al., No. 8:20-cv-1779 (M.D. Fla.) (dismissed

on May 27, 2021 for failure to state a claim); and

•LoRusso v. Paul, No. 5:22-cv-260 (E.D. Ky.) (dismissed as frivolous

on October 12, 2022).

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

attributable to LoRusso insofar as they bear his name and FDC number

(345454).

Because LoRusso has accrued at least three strikes, he may not

litigate this case in forma pauperis, and he was required to pay the filing

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fee at case initiation, unless his allegations demonstrate that he was

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

2. LoRusso Fails to Satisfy the Imminent-Danger

Exception

In determining whether a prisoner sufficiently has alleged

imminent danger of serious physical injury, the court “looks to the

complaint, construing it liberally and accepting its allegations as true.”

Daker v. Ward, 999 F.3d 1300, 1311 (11th Cir. 2021). To satisfy the

“imminent danger” exception, the prisoner must allege that he is in

“imminent danger ‘at the time that he seeks to file his suit in district

court.’” Id. at 1310–11 (quoting Medberry v. Butler, 185 F.3d 1189, 1192–

93 (11th Cir. 1999)). “General allegations that are not grounded in

specific facts which indicate that serious physical injury is imminent are

not sufficient to invoke the exception to § 1915(g).” Niebla v. Walton Corr.

Inst., 2006 WL 2051307, *2 (N.D. Fla. July 20, 2006) (citing Martin v.

Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003)); Daker, 999 F.3d at 1311

(general assertions are “insufficient to invoke the exception to § 1915(g)

absent specific fact allegations of ongoing serious physical injury, or of a

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pattern of misconduct evidencing the likelihood of imminent serious

physical injury.”).

Here, LoRusso’s allegations do not establish he is in imminent

danger of serious physical injury. LoRusso alleges that other inmates and

patients are “violent,” but LoRusso fails to allege specific facts indicating

that fellow patients have caused harm to LoRusso or likely will cause him

serious physical injury. A mere allegation that a person was “violent” is

insufficient to invoke 1915(g)’s exception. Ridley v. Ward, 2023 WL

11967765, at *2 (N.D. Ga. Mar. 31, 2023).

Because LoRusso is barred from proceeding in forma pauperis, the

District Court must deny LoRusso’s motion for leave to proceed in forma

pauperis and dismiss this case without prejudice under 28 U.S.C. §

1915(g). Dupree, 284 F.3d at 1236.

B. Dismissal Under 28 U.S.C. § 1915A(b)(1)

There is a second, independent reason to dismiss this civil action: a

district court must dismiss a civil action filed by a prisoner if the court

determines that the action is frivolous, malicious, or fails to state a claim

on which relief may be granted. 28 U.S.C. § 1915A(b)(1).

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1. Sovereign Immunity

LoRusso sues the FDC and the Secretary of the Florida Children

and Family Services under § 1983 for damages. These claims must be

dismissed because these Defendants are entitled to sovereign immunity.

The Eleventh Amendment recognizes that the States may assert

sovereign immunity that would bar suits by an individual against a

State, its agencies, and its employees in their official capacity, unless

Congress has abrogated the State’s sovereign immunity, or the State has

consented to the lawsuit. See Hans v. Louisiana, 134 U.S. 1, 16–18 (1890);

Manders v. Lee, 338 F.3d 1304, 1308 (11th Cir. 2003) (en banc).

The Eleventh Amendment and the doctrine of sovereign immunity,

however, do not preclude suits against state officers in their official

capacities for prospective injunctive relief. Summit Med. Assoc., P.C. v.

Pryor, 180 F.3d 1326, 1337 (11th Cir. 1999) (citing Green v. Mansour, 474

U.S. 64, 68 (1985)). Ex parte Young provides a narrow exception to

sovereign immunity in cases where a party is seeking prospective relief

against state officials for ongoing violations of federal law. 209 U.S. 123

(1908). “In determining whether the doctrine of Ex parte Young avoids an

Eleventh Amendment bar to suit, a court need only conduct a

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‘straightforward inquiry into whether [the] complaint alleges an ongoing

violation of federal law and seeks relief properly characterized as

prospective.’” Va. Off. for Prot. & Advoc. v. Stewart, 563 U.S. 247, 255

(2011) (quoting Verizon Md. Inc. v. Public Serv. Comm’n of Md., 535 U.S.

635, 645 (2002)).

Congress has not abrogated the States’ sovereign immunity in

actions for damages under § 1983. Will v. Mich. Dep’t of State Police, 491

U.S. 58, 67–68 (1989). Furthermore, Florida has not waived its immunity

from suit. See Zatler v. Wainwright, 802 F.2d 397, 400 (11th Cir. 1986)

(“Florida’s limited waiver of sovereign immunity was not intended to

encompass section 1983 suits for damages.”) (internal citation and

quotations omitted). Thus, LoRusso’s claims for damages against the

FDC and the Secretary of the Florida Children and Family Services must

be dismissed.

2. LoRusso Requests Criminal Prosecution of Defendants

LoRusso also requests that the District Court initiate a criminal

prosecution of Defendants. This claim is frivolous.

“The Executive Branch—not the Judiciary—makes arrests and

prosecutes offenses on behalf of the United States.” United States v.

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Texas, 599 U.S. 670, 679 (2023) “Under the authority of Art. II, s 2,

Congress has vested in the Attorney General”—not the federal courts—

“the power to conduct the criminal litigation of the United States

Government.” United States v. Nixon, 418 U.S. 683, 694 (1974) (citing 28

U.S.C. § 516).

Because the District Court lacks the authority to initiate criminal

prosecutions against Defendants, LoRusso’s claim is frivolous.

C. The District Court Should Dismiss Plaintiff’s Habeas

Petitions

As noted above, LoRusso seeks to change this civil action—that

LoRusso filed pursuant to 42 U.S.C. § 1983—into a petition for a writ of

habeas corpus. But an action pursuant to § 1983 and a petition for a writ

of habeas corpus “are mutually exclusive: if a claim can be raised in a

federal habeas petition, that same claim cannot be raised in a separate §

1983 civil rights action.” Hutcherson v. Riley, 468 F.3d 750, 754 (11th Cir.

2006) (emphasis added). Thus, LoRusso may not convert this civil action

into a habeas proceeding merely by requesting as much. “[A] petition for

habeas corpus may not be ‘converted’ to a civil suit, nor may district

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judges convert suits in the other direction.” Richmond v. Scibana, 387

F.3d 602, 606 (7th Cir. 2004).

Even if the District Court possessed the power to convert this civil

action into one seeking a writ of habeas corpus, that would create a

duplicative habeas case. LoRusso asserts that the State is engaging in

“vindictive prosecution” and brought the charges against LoRusso to

penalize LoRusso for “exercising a constitutional right to file an 2254

petition.” Doc. 9 at 3. Essentially this is the same habeas claim that

LoRusso has raised in another case. See LoRusso v. Secretary Fla. Dept.

of Child. and Fam., 1:25-cv-105-TKW-MAF (N.D. Fla.). A petitioner may

not maintain two duplicative habeas cases. See I.A. Durbin, Inc. v.

Jefferson Nat’l Bank, 793 F.2d 1541, 1551 (11th Cir. 1986) (explaining

“the general rule is that a suit is duplicative of another suit if the parties,

issues and available relief do not significantly differ between the two

actions” and federal trial courts have broad discretion to dismiss

duplicative litigation to avoid wasting judicial resources); Martin v. Sec'y,

Dep't of Corr., No. 24-10677, 2024 WL 2853188, at *1 (11th Cir. June 5,

2024) (citing I.A. Durbin, Inc., and applying same principle to duplicative

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habeas appeal). Thus, LoRusso’s attempt to recast this § 1983 action as

a habeas case does not prevent dismissal.

CONCLUSION

For the reasons set forth above, the undersigned respectfully

RECOMMENDS that the District Court:

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

pauperis, Doc. 10.

1. DISMISS this civil action with prejudice under 28 U.S.C. §

1915(g) and 28 U.S.C. § 1915A(b)(1).

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

At Panama City, Florida, this 17th day of April 2026.

/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

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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 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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