UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PANAMA CITY DIVISION

WALTER LEE WRIGHT,

Plaintiff,

v. Case No. 5:24-cv-215-MW-MJF

SERGEANT BROWN, et al.,

Defendants.

/ REPORT AND RECOMMENDATION

Walter Lee Wright, a Florida prisoner proceeding pro se, has filed a complaint under

. Doc. 1. The undersigned recommends that this action be dismissed because Wright is a prisoner who has incurred at least three strikes, is barred by

(g) from proceeding in forma pauperis, and failed to pay the filing fee at the time he filed this lawsuit. I. WRIGHT’S COMPLAINT Wright, DC # B04096, is confined at the Walton Correctional Institution. Doc. 1 at 1-2. Wright is suing two correctional officers at the Holmes Correctional Institution: Sergeant Brown and Officer Golden.

Page 1 of 6 Wright claims that on August 14, 2020, Brown and Golden used excessive

force on Wright when they peppered-sprayed him for disobeying an order.

. Wright seeks punitive damages.

. Wright has not paid the filing fee or filed a motion for leave to

proceed in forma pauperis. See N.D. Fla. Loc. R. 5.3 (“A party who files or removes a civil case must simultaneously either pay any fee required under

or move for leave to proceed in forma pauperis

under

.”). As discussed below, Wright is not eligible to proceed in forma pauperis and was required to remit the full filing fee with his complaint.

II. DISCUSSION Pursuant to

(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.

(g); see Lomax v. Ortiz-Marquez,

,

(2022). A prisoner who is barred from proceeding in forma pauperis must pay the filing fee at the time he initiates his lawsuit, and failure to do so warrants dismissal of his case without prejudice. See

Page 2 of 6 Dupree v. Palmer,

(11th Cir. 2002) (an action must

be dismissed without prejudice when an inmate who is subject to § 1915(g) does not pay the filing fee at the time he initiates suit); Vanderberg v. Donaldson,

(11th Cir. 2001). The only

exception is if the prisoner alleges that he is “under imminent danger of serious physical injury.”

(g); see also Brown v. Johnson,

(11th Cir. 2004).

A. Wright Has Three “Strikes” Wright has accrued at least three strikes, as recognized by a district judge of the Northern District of Florida. See Wright v. Gunter, No. 3:22-

cv-2888-LC-HTC,

(N.D. Fla. Apr. 28, 2022) (dismissing Wright’s civil rights action under three-strikes provision of

(g), and as malicious). The undersigned takes judicial notice that the

following two actions and appeal filed by Wright while incarcerated were dismissed as frivolous or for failure to state a claim: ● Wright v. Miranda, No. 1:17-cv-24398-DPG,

(S.D. Fla. Feb. 2, 2018) (civil rights action dismissed under

(e)(2)(B)(ii) for failure to state a claim), aff’d,

(11th Cir. July 10, 2018);

● Wright v. Martin, No. 17-12014 (11th Cir. Dec. 19, 2017) (appeal dismissed as frivolous); Page 3 of 6 ● Wright v. Pearson, No. 1:17-cv-24338-UU,

(S.D. Fla. Jan. 22, 2018) (civil rights action dismissed under

(e)(2)(B)(ii) for failure to state a claim), aff’d,

(11th Cir. 2018).

All of the foregoing cases bear Wright’s DC# B04096. All of the foregoing strikes were entered before Wright filed this lawsuit. Because Wright has incurred three strikes, he may not litigate this case in forma pauperis unless he demonstrates that he is “under imminent danger of serious physical injury.”

(g). B. Wright Fails to Satisfy the Imminent-Danger Exception

To satisfy the “imminent danger” exception, “the prisoner must show that he is in imminent danger ‘at the time that he seeks to file his suit in district court.’” Daker v. Ward,

, 1310–11 (11th Cir. 2021) (quoting Medberry v. Butler,

, 1192–93 (11th Cir.

1999)). An allegation of past imminent danger will not invoke the exception. Medberry,

. Wright’s allegations—that officers at a different prison sprayed

him with pepper spray over four years ago—do not demonstrate that Wright is in imminent danger of serious physical injury. Because Wright is barred from proceeding in forma pauperis and failed to pay the filing

Page 4 of 6 fee at the time he initiated this lawsuit, the District Court must dismiss

this case under

(g).1 III. CONCLUSION For the reasons set forth above, the undersigned respectfully

RECOMMENDS that: 1. This action be DISMISSED without prejudice pursuant to

(g).

2. The clerk of court close this case file. At Panama City, Florida, this 23rd day of September, 2024.

/s/ Michael J. Frank Michael J. Frank United States Magistrate Judge

NOTICE TO THE PARTIES

1 An alternative basis for dismissing this case with prejudice is that the four-year statute-of-limitations bar is apparent from the face of Wright’s complaint. Florida’s four-year statute of limitations for personal injuries applies to claims for deprivations of rights under section 1983. Chappell v. Rich,

(11th Cir. 2003). A section 1983 claim accrues—and the statute of limitations begins to run—when “the facts which would support a cause of action are apparent or should be apparent to a person with a reasonably prudent regard for his rights.” Mullinax v. McElhenney,

(11th Cir. 1987) (internal quotation marks and citation omitted). The use of force occurred on August 14, 2020. Wright filed his complaint on September 13, 2024. Page 5 of 6 The District Court referred this case to the undersigned to address preliminary matters and to make recommendations regarding dispositive matters. See N.D. Fla. Loc. R. 72.2; see also

(b)(1)(B), (C); Fed. R. Civ. P. 72(b). 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 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;

. 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 court taking judicial notice of that fact, they must raise this issue in an objection to this report and recommendation.

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