REED v. THE GEO GROUP
3:18-cv-00191
N.D. Fla.Apr 12, 2018Background
- Plaintiff Louis Reed, a prisoner proceeding pro se, filed a § 1983 complaint alleging inadequate treatment of a left wrist injury (May 2017) and exposure to environmental tobacco smoke at a prior facility.
- The court ordered Reed to file an in forma pauperis (IFP) application or pay the $400 filing fee; Reed contested being charged a second filing fee because of similarity to a previously dismissed case.
- Reed previously filed duplicative/related litigation: a district-court dismissal (N.D. Fla. Case No. 3:17cv126-RV-EMT) and an Eleventh Circuit dismissal of the appeal, plus an earlier M.D. Fla. dismissal; the court took judicial notice of these dismissals.
- Because Reed has three prior dismissals for frivolous/malicious/failed-to-state claims, the magistrate judge determined § 1915(g) (three-strikes rule) bars IFP status unless Reed alleges imminent danger of serious physical injury.
- The magistrate judge found Reed was not in imminent danger: the alleged harms arose at a former place of confinement and do not show current imminent risk; Reed also failed to pay the filing fee when initiating the suit.
- The April 3, 2018 Report and Recommendation was vacated, and the magistrate judge recommended dismissal without prejudice under 28 U.S.C. § 1915(g) and closure of the file.
Issues
| Issue | Plaintiff's Argument | Defendant / Court's Position | Held |
|---|---|---|---|
| Whether Reed is barred from proceeding IFP under 28 U.S.C. § 1915(g) | Reed opposed being assessed a second $400 filing fee and recharacterization of the case as a new filing | Court noted Reed has three prior qualifying dismissals, triggering the § 1915(g) bar | Reed is barred from IFP under § 1915(g) |
| Whether Reed qualifies for the § 1915(g) "imminent danger" exception | Reed alleged ongoing risk from wrist injury and ETS exposure | Court found allegations concerned a prior facility and did not demonstrate current imminent danger of serious physical injury | Imminent-danger exception not satisfied |
| Proper remedy when a prisoner barred by § 1915(g) fails to pay filing fee at initiation | Reed did not pay the $400 fee when filing | Citing Dupree, the court indicated dismissal without prejudice is proper when § 1915(g) bars IFP and fee is unpaid | Case recommended dismissed without prejudice for failure to pay fee |
| Whether prior dismissals/counted appeals constitute "strikes" under § 1915(g) | Reed disputed re-assessment of strikes / second fee | Court took judicial notice of prior dismissals and Eleventh Circuit frivolous-appeal dismissal; treats each qualifying dismissal/appeal as a separate strike | Prior dismissals and frivolous appeal count as strikes; Reed has three strikes |
Key Cases Cited
- Dupree v. Palmer, 284 F.3d 1234 (11th Cir.) (dismissal without prejudice is proper when § 1915(g) bars IFP and filing fee was not paid)
- Medberry v. Butler, 185 F.3d 1189 (11th Cir. 1999) (prior dismissals before PLRA still count toward § 1915(g) strikes)
- Jennings v. Natrona County Detention Ctr. Med. Facility, 175 F.3d 775 (10th Cir. 1999) (an appeal dismissed as frivolous can count as a separate strike)
- Coleman v. Tollefson, 135 S. Ct. 1759 (2015) (discussing procedural points relating to in forma pauperis appeals)