OWENS v. FLORIDA DEPARTMENT OF CORRECTIONS et al
Filing
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ORDER OF DISMISSAL - The report and recommendation is accepted and adopted as the court's opinion. The clerk must enter judgment stating, "The complaint is dismissed without prejudice." The clerk must close the file. Signed by JUDGE ROBERT L HINKLE on 1/20/2017. (cle)
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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
ALBERT T. OWENS, JR.,
Plaintiff,
v.
CASE NO. 4:16cv399-RH/GRJ
JULIE JONES et al.,
Defendants.
_____________________________/
ORDER OF DISMISSAL
This prisoner civil-rights case is before the court on the magistrate judge’s
report and recommendation, ECF No. 9, the plaintiff Albert T. Owens, Jr.’s
objections, ECF No. 10, and his supplemental objections, ECF Nos. 11 and 12. I
have reviewed de novo the issues raised by the objections.
As noted in the report and recommendation, Mr. Owens has at least three
“strikes” under 28 U.S.C. § 1915(g) and thus can proceed in forma pauperis only if
he is in imminent danger of serious physical injury. In the complaint, Mr. Owens
alleges imminent danger from officials at Jefferson Correctional Institution. But
before the motion for leave to proceed in forma pauperis could be considered, Mr.
Owens was transferred to Franklin Correctional Institution. ECF No.8. And now
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Mr. Owens has been transferred again, to Wakulla Correctional Institution. ECF
No. 13.
Past danger is not enough to allow a three-strikes prisoner to proceed in
forma pauperis. See Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999)
(“[A] prisoner’s allegation that he faced imminent danger sometime in the past is
an insufficient basis to allow him to proceed in forma pauperis pursuant to the
imminent danger exception to the statute.”); Owens v. Schwartz, 519 Fed. App’x
992, 993 (11th Cir. 2013) (holding that a prisoner who was in imminent danger
when he filed the complaint could not proceed in forma pauperis because he had
been transferred to a different facility and was no longer in imminent danger).
Mr. Owens asserts the imminent-danger exception applies if a prisoner is in
imminent danger when the complaint is filed, even if the imminent danger has
passed before leave to proceed in forma pauperis is granted. But Owens is to the
contrary. Owens is unpublished and thus not binding, but the result makes sense.
The point of the statute is to allow a prisoner to seek protection from imminent
danger—not to provide a prisoner a means of evading the three-strikes bar.
Mr. Owens also says he was in imminent danger even after the transfer to
Franklin because he was not receiving adequate mental-health services and was at
risk of harming himself. But he did not allege facts showing that he was in
imminent danger at Franklin or that officials there would not fully address his
Case No. 4:16cv399-RH/GRJ
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medical needs. Conclusory allegations are not enough. Moreover, Mr. Owens has
now been transferred to Wakulla. The record provides no reason to believe that
Wakulla officials will not fully respond to requests for treatment.
If, after exhausting administrative remedies for any claim of mistreatment at
Wakulla, Mr. Owens faces imminent danger, he may file a new lawsuit directed to
that mistreatment. Meanwhile, in this case—in which Mr. Owens challenges his
treatment at Jefferson—he may not proceed in forma pauperis. This is precisely
the kind of claim the three-strikes provision was intended to address.
For these reasons,
IT IS ORDERED:
The report and recommendation is accepted and adopted as the court’s
opinion. The clerk must enter judgment stating, “The complaint is dismissed
without prejudice.” The clerk must close the file.
SO ORDERED on January 20, 2017.
s/Robert L. Hinkle
United States District Judge
Case No. 4:16cv399-RH/GRJ
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