GRAHAM
v.
KYLE
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A prisoner who has had three prior federal lawsuits dismissed for failure to state a claim cannot proceed in forma pauperis unless alleging imminent danger of serious physical injury.
Plaintiff, a prisoner, moved to proceed in forma pauperis. The court identified three prior federal lawsuits filed by the plaintiff that were dismisse…
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Before the Court is pro se Plaintiff Kevin O. Graham's Complaint. (Doc. 1). Graham—a prisoner of the Florida Department of Corrections— moves for leave to proceed in forma pauperis. (Doc. 2). Because Graham is barred from doing so under 28 U.S.C. § 1915(g), the Court dismisses this action without prejudice.
Under § 1915(g), a prisoner cannot proceed in forma pauperis if “on 3 or more prior occasions, while incarcerated or detained in any facility, [he] brought an action or appeal in a [federal] court...that was dismissed on the grounds that it is frivolous, malicious, or fails to state claim upon which relief may be granted[.]" 28 U.S.C. § 1915(g); see Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 1723 (2020) (“To help staunch a 'flood of nonmeritorious' prisoner
litigation, the Prison Litigation Reform Act of 1995 (PLRA) established what has become known as the three-strikes rule." (citation omitted)). And “[a] dismissal of a suit for failure to state a claim counts as a strike, whether or not with prejudice.” Lomах, 140 S. Ct. at 1727.
The Court takes judicial notice of three prior federal lawsuits Graham filed in this district, all of which were filed before this case and dismissed for failing to state a claim upon which relief may be granted: Cases Nos. (1) 2:24- cv-230-JLB-NPM; (2) 2:24-cv-834-JLB-KCD; and (3) 2:24-cv-626-SPC-NPM. Graham is not exempt from § 1915(g)'s three-strikes rule, as the Complaint does not allege he is in imminent danger of serious physical injury. Mitchell v. Nobles, 873 F. 3d 869, 872 (11th Cir. 2017).
The Court thus dismisses the Complaint without prejudice. If Kevin O. Graham's wishes to pursue his claim(s), he must file a new complaint— under a new case number—and pay the $402.00 filing fee.
Accordingly, it is
ORDERED:
1. Kevin O. Graham's Complaint (Doc. 1) is DISMISSED without prejudice under 28 U.S.C. § 1915(g).
2. The Clerk is DIRECTED to enter judgment, terminate any
pending motions and deadlines, and close this file.
2
DONE and ORDERED in Fort Myers, Florida on December 10, 2024.
SHERI POLSTER CHAPPELL
UNITED STATES DISTRICT JUDGE
SA: FTMP-1 Copies: All Parties of Record
3
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Citator
Authorities Cited
- Mitchell v. Warden, Nobles, Warden Care and Treatment, Mark G. Woods, Medical Director, J. Hendricks, 873 F.3d 869 (11th Cir. 2017)