4:26-cv-00001•CONSTANT v. FLORIDA DEPARTMENT OF CORRECTIONS et al
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION BRIAN CHARLES PIERRE CONSTANT III, D.O.C. # U59225, Plaintiff, vs. Case No. 4:26-cv-1-MCR-MAF FLORIDA DEPARTMENT OF CORRECTIONS, et al., Defendants. ___________________________/ REPORT AND RECOMMENDATION Plaintiff, a pro se state prisoner, submitted a civil rights complaint on December 29, 2025 by prison mailbox rule. ECF No. 1. Plaintiff did not pay the filing fee, but did submit a prisoner consent form and financial certificate, along with a copy of his inmate trust account statement for January through March 2025. ECF No. 2. Though deficient, the Court construes the filing as a motion for leave to proceed in forma pauperis (IFP). Plaintiff is not eligible for IFP status because he is a “three-striker” under the Prison Litigation Reform Act (PLRA) and the complaint fails to show he is in imminent danger of serious physical injury. Dismissal is warranted. The PLRA prohibits a prisoner from bringing a civil action without prepaying the filing fee “if the prisoner has, on 3 or more prior Case 4:26-cv-00001-MCR-MAF Document 4 Filed 01/06/26 Page 1 of 4
Page 2 of 4 4:26-cv-1-MCR-MAF occasions…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 upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). Plaintiff acknowledges in his complaint that he is a three-striker. ECF No. 1 at 9. Judicial notice is taken of the following civil rights cases filed by Plaintiff and dismissed as frivolous, malicious, or for failure to state a claim: (1) Constant III v. Clemmons, et al., Case No. 3:20-cv-5389-MCR-EMT (N.D. Fla. June 17, 2020) (malicious); (2) Constant III v. Beasley, et al., Case No. 5:20-cv-85-TJC-PRL (M.D. Fla. September 24, 2020) (failure to state a claim); (3) Constant III v. Beasley, et al., No. 20-13721-A (11th Cir. March 5, 2021) (appeal dismissed as frivolous from the dismissal in Case No. 5:20- cv-85). All were filed when Plaintiff was a prisoner.1 Because Plaintiff has three strikes, he is not entitled to proceed without paying the filing fee at the time of case initiation unless he alleges that he is “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). Plaintiff should be aware of this because he previously had a case dismissed pursuant to § 1915(g). Constant III v. Marion County Sheriff’s Office, et al., 1 Each case cited herein contains Plaintiff’s name and either his DOC or Marion County County Jail inmate number. Case 4:26-cv-00001-MCR-MAF Document 4 Filed 01/06/26 Page 2 of 4
Page 3 of 4 4:26-cv-1-MCR-MAF Case No. 5:21-cv-429-WFJ-PRL (M.D. Fla. September 17, 2021). Plaintiff’s complaint fails to show imminent danger. He alleges excessive force and ADA violations based on events that occurred in November 2023 at the Reception and Medical Center (RMC) in Lake Butler.2 See ECF No. 1 at 5- 6. Plaintiff cannot rely on allegations of past assaults or actions to establish imminent harm. See Porter v. Inch, Case No. 4:20-cv-230, 2020 WL 4018612, at *4 (N.D. Fla. June 19, 2020) (finding no imminent danger when the alleged assault occurred nearly one month prior to the filing of the complaint). Plaintiff’s complaint fails to allege imminent danger of serious physical injury. Therefore, this case should be summarily dismissed without prejudice because Plaintiff did not submit the filing fee at the same time the complaint was submitted, and as a three-striker under § 1915(g), Plaintiff is not entitled to belatedly pay the filing fee. Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002). “The prisoner cannot simply pay the filing fee after being denied in forma pauperis status.” Id. 2 Lake Butler is located within the Middle District of Florida. However, Plaintiff sues the Florida Department of Corrections (DOC) and several staff members in their official and individual capacities. ECF No. 1 at 2-3. Because DOC is headquartered within the Northern District of Florida, venue here is proper for this limited review. Case 4:26-cv-00001-MCR-MAF Document 4 Filed 01/06/26 Page 3 of 4
Page 4 of 4 4:26-cv-1-MCR-MAF RECOMMENDATION It is respectfully RECOMMENDED that Defendant’s motion for leave to proceed in forma pauperis, ECF No. 2, be DENIED and this case be DISMISSED without prejudice. The Order adopting this Report and Recommendation should direct the Clerk of Court to note on the docket that this case was dismissed pursuant to 28 U.S.C. § 1915(g). IN CHAMBERS at Tallahassee, Florida on January 6, 2026. s/ Martin A. Fitzpatrick MARTIN A. FITZPATRICK UNITED STATES MAGISTRATE JUDGE NOTICE TO THE PARTIES Within fourteen (14) days after being served with a copy of this Report and Recommendation, a party may serve and file specific written objections to these proposed findings and recommendations. Fed. R. Civ. P. 72(b)(2). A copy of the objections shall be served upon all other parties. A party may respond to another party’s objections within fourteen (14) days after being served with a copy thereof. Fed. R. Civ. P. 72(b)(2). Any different deadline that may appear on the electronic docket is for the Court’s internal use only and does not control. If a party fails to object to the Magistrate Judge’s findings or recommendations as to any particular claim or issue contained in this Report and Recommendation, that party waives the right to challenge on appeal the District Court’s order based on the unobjected-to factual and legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636(b)(1)(C). Case 4:26-cv-00001-MCR-MAF Document 4 Filed 01/06/26 Page 4 of 4
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