LEWIS v. DOC

Filing 22

ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION. The magistrate judge's report and recommendation (ECF No. 15 ) is hereby ADOPTED and incorporated by reference into this order. Plaintiff's Motion for a Temporary Restraining Order and a Preliminary Injunction (ECF No. 4 ) is DENIED. All other pending motions are DENIED. The plaintiff's complaint and this action are DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1915(g). The clerk shall enter judgment stating: "This action is dismissed without prejudice pursuant to 28 U.S.C. § 1915(g)." Signed by SENIOR JUDGE WILLIAM STAFFORD on 9/11/2020. (kjw)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

JONATHAN LEWIS,
Plaintiff,
v.

4:20cv300–WS/HTC

FDOC,
Defendant.

ORDER ADOPTING THE MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION
Before the court is the magistrate judge's report and recommendation (ECF
No. 15) docketed August 10, 2020. The magistrate judge recommends that this
case be dismissed pursuant to the three-strikes provision of 28 U.S.C. § 1915(g).
The plaintiff, Jonathan Lewis, has filed objections (ECF No. 21) to the
magistrate judge’s report and recommendation. Among other things, Lewis
suggests that the magistrate judge erred in counting—as strikes—cases for which
he paid the filing fee. Courts have consistently determined, however, that the
“three strikes” provision set forth in 28 U.S.C. § 1915(g) is not limited to prior in
forma pauperis actions. See, e.g., Belanus v. Clark, 796 F.3d 1021, 1028 (9th Cir.

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2105) (concluding that dismissals may be designated as strikes under § 1915(g)
regardless of whether the filing fee is paid); Hyland v. Clinton, 3 F. App’x 478,
479 (6th Cir. 2001) (noting that Ҥ 1915(g) does not distinguish between prior in
forma pauperis actions and prior actions in which the fee was paid”). Thus, the fact
that Lewis paid the filing fee in some but not all of his prior cases is of no benefit
to him—all of Lewis’s dismissed cases cited by the magistrate judge count as
strikes. Because Lewis has not paid the filing fee in this case, has had three (3) or
more strikes under § 1915(g), and has not demonstrated that he is under imminent
danger of serious physical injury, his case must be dismissed without prejudice,
just as the magistrate judge has recommended.
Accordingly, it is ORDERED:
1. The magistrate judge's report and recommendation (ECF No. 15) is
hereby ADOPTED and incorporated by reference into this order.
2. Plaintiff’s Motion for a Temporary Restraining Order and a Preliminary
Injunction (ECF No. 4) is DENIED. All other pending motions are DENIED.
3. The plaintiff’s complaint and this action are DISMISSED WITHOUT
PREJUDICE pursuant to 28 U.S.C. § 1915(g).
4. The clerk shall enter judgment stating: “This action is dismissed without
prejudice pursuant to 28 U.S.C. § 1915(g).”

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DONE AND ORDERED this

11th

day of

September

, 2020.

s/ William Stafford
WILLIAM STAFFORD
SENIOR UNITED STATES DISTRICT JUDGE