MATHEWS v. DIXON et al

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UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
CARLTON XAVIER MATHEWS,
Plaintiff,
vs. 	Case No.: 3:25cv1511/LAC/ZCB
OFFICER FERENTO,
Defendant.
/
REPORT AND RECOMMENDATION
Plaintiff is an inmate of the Florida Department of Corrections
(FDOC). 	His complaint (Doc. 1) was accompanied by a “Notice to the
Court” asking the Court to “hold filing fee in abeyance or grant extension
of time” while he completes the special withdrawal process to send the
filing fee payment. 	(Doc. 2).1 	Plaintiff requested that the Court “stay”
this action until his special withdrawal request was processed by FDC
officials. (Id.).
1 Plaintiff apparently recognizes he is a “three-striker” and thus is not
eligible to proceed in forma pauperis (IFP). 	(Doc. 1 at 22); see 28 U.S.C.
§ 1915(g) (prohibiting a prisoner from proceeding IFP in a civil action if
he has “on 3 or more prior occasions, while incarcerated ... 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.”).
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The Court has reviewed Plaintiff’s litigation history and confirmed
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, even though the Court
extended the deadline for him to do so. 	(Docs. 4, 7). Because Plaintiff 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 .
. . , 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
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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).
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.2 	(Doc. 1 at 22-26). 	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:
• 	Mathews 	v. 	Jacksonville 	Fire 	and 	Rescue 	Dep’t, 	et 	al.,
3:16cv724-TJC-PDB (M.D. Fla. July 11, 2016) (dismissing
2 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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Plaintiff’s 	complaint 	under 	28 	U.S.C. 	§ 	1915(e)(2)(B) 	for
failure to state a claim on which relief may be granted);
• 	Mathews v. Walters, et al., 3:22cv19312-LC-HTC (N.D. Fla.
Oct. 18, 2022) (dismissing Plaintiff’s complaint as malicious
for abuse of the judicial process); and
• 	Mathews v. Westly, et al., 5:22cv85-TKW-MJF (N.D. Fla. Nov.
10, 	2022) 	(dismissing 	Plaintiff’s 	complaint 	under 	28
§ 1915A(b)(1)3).4
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 or by the Court’s extended deadline. 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.
3 That statute authorizes the Court to dismiss a prisoner complaint if it
is frivolous, malicious, or fails to state a claim upon which relief may be
granted. 28 U.S.C. § 1915A(b)(1).
4 Plaintiff identified himself with FDOC inmate #J27519 in his pleadings
in all of these cases.
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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
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.”).
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Here, 	Plaintiff’s 	allegations 	involve 	past 	harms. 	He 	alleges
Defendants failed to protect him from an attack by his cellmate and used
excessive force on him in October of 2023, when he was housed at Santa
Rosa 	Correctional 	Institution. 	(Doc. 	1 	at 	5-19). 	Plaintiff 	seeks
retrospective relief (compensatory and punitive damages) for Defendants’
conduct. 	(Id. at 20). 	He does not allege he is under any threat of
impending harm.5 Because Plaintiff’s allegations do not indicate he was
in imminent danger of serious physical injury when he filed this lawsuit
in August of 2025, he does not qualify for the imminent danger exception
to the three-strikes bar.
II. 	Conclusion
Plaintiff is a three-striker. 	He did not pay the filing fee when he
filed his complaint or by the Court-ordered deadline. 	And he has not
satisfied the “imminent danger” exception under § 1915(g). 	For these
reasons, dismissal of the complaint without prejudice is appropriate.
Accordingly, it is respectfully RECOMMENDED that:
5 Indeed, Plaintiff was no longer housed at Santa Rosa C.I. when he filed
the complaint in this case. 	He had been transferred to the Reception
Medical Center. (Doc. 1 at 3, 29).
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1. 	This action be DISMISSED without prejudice, under 28
U.S.C. § 1915(g), based on Plaintiff’s failure to pay the filing fee.
2. 	The Clerk of Court be directed to enter judgment accordingly
and close this case.
At Pensacola, Florida this 13th day of November 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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