3:25-cv-01511•MATHEWS v. DIXON et al
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1 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.”). Case 3:25-cv-01511-LC-ZCB Document 8 Filed 11/13/25 Page 1 of 7
2 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 Case 3:25-cv-01511-LC-ZCB Document 8 Filed 11/13/25 Page 2 of 7
3 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). Case 3:25-cv-01511-LC-ZCB Document 8 Filed 11/13/25 Page 3 of 7
4 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. Case 3:25-cv-01511-LC-ZCB Document 8 Filed 11/13/25 Page 4 of 7
5 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.”). Case 3:25-cv-01511-LC-ZCB Document 8 Filed 11/13/25 Page 5 of 7
6 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). Case 3:25-cv-01511-LC-ZCB Document 8 Filed 11/13/25 Page 6 of 7
7 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. Case 3:25-cv-01511-LC-ZCB Document 8 Filed 11/13/25 Page 7 of 7
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