Alfred v. Bernstein et al

Filing 3

ORDER DISMISSING COMPLAINT: The Complaint [DE #1 ] is DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. 1915(g). All pending motions are DENIED AS MOOT. The Clerk of Court SHALL CLOSE this case. Closing Case. (Without Prejudice) Signed by Judge Robin L. Rosenberg on 7/1/2024. See attached document for full details. (wce)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 24-CV-22395-ROSENBERG
JERRY NEIL ALFRED,
Plaintiff,
v.
DANIEL J. BERNSTEIN, et al.,
Defendants.
__________________________________/
ORDER DISMISSING COMPLAINT
THIS CAUSE is before the Court upon Plaintiff Kelvin Frazier’s Civil Rights Complaint
pursuant to 42 U.S.C. § 1985 [DE 1]. Because Plaintiff has incurred more than “three-strikes”
under the Prison Litigation Reform Act (“PLRA”) as partially codified at 28 U.S.C. §
1915(e)(2)(B)(i)–(iii), his Complaint is DISMISSED for failure to pay the filing fee.
See § 1915(g).
I.

LEGAL STANDARD

The PLRA includes the following provision:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action
or proceeding under this section if the prisoner has, on 3 or more prior occasions,
while incarcerated or detained in any facility, 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 upon which relief may be granted, unless the prisoner is
under imminent danger of serious physical injury.
28 U.S.C. § 1915(g). To count as a strike under § 1915(g), a dismissal must be “[o]n the grounds
that the claims were frivolous, malicious, or failed to state a claim.” Daker v. Bryson, 748 F. App’x
690, 691–92 (11th Cir. 2019) (citation omitted). A three-strikes plaintiff cannot pay the filing fee
after filing suit as a retroactive cure. Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002).

One exception to the three-strikes rule is where the plaintiff demonstrates that he or she is
“under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). A three-striker prisoner
who is under imminent danger of serious physical injury may file without prepaying the filing fee.
Id. To determine whether a plaintiff is entitled to this exception, the court must “look to the
prisoner’s complaint ‘as a whole,’ construing it liberally and accepting his allegations as true.”
Smith v. Clemons, 465 F. App’x 835, 836 (11th Cir. 2012) (quoting Brown v. Johnson, 387 F.3d
1344, 1350 (11th Cir. 2004)). However, vague and conclusory allegations of being in imminent
danger of serious physical injury “do not satisfy the dictates of § 1915(g).” Skillern v. Paul, 202
F. App’x 343, 344 (11th Cir. 2006).
II.

DISCUSSION

As previously found, Plaintiff is subject to the three-strikes bar. See Alfred v. Enfinger, No.
3:16CV227/LC/CJK, 2016 WL 3390481, at *1 (N.D. Fla. May 26, 2016), report and
recommendation adopted, No. 3:16CV227/LC/CJK, 2016 WL 3406101 (N.D. Fla. June 17, 2016)
Because Plaintiff has accrued at least three strikes he is not permitted to institute this case without
prepaying the filing fee. See Daker, 784 F. App’x at 691.
In the instant case, Plaintiff did not pay a filing fee. Consequently, he may not proceed in
forma pauperis unless he demonstrates that he meets the “imminent danger of serious physical
injury” exception. Brown, 387 F.3d at 1350. Plaintiff has not provided any allegations that
establish the imminent danger exception. A review of the Complaint shows that Plaintiff is
challenging actions by the Defendants that occurred many years ago, indicating that there is no
imminent danger to warrant an exception to the three strikes bar.
Accordingly, it is ORDERED AND ADJUDGED that:
1. The Complaint [DE 1] is DISMISSED WITHOUT PREJUDICE pursuant to 28
U.S.C. § 1915(g).
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2. All pending motions are DENIED AS MOOT; and
3. The Clerk of Court SHALL CLOSE this case.
DONE AND ORDERED Chambers in West Palm Beach, Florida, this 1st day of July
2024.

ROBIN L. ROSENBERG
UNITED STATES DISTRICT JUDGE
cc:
Jerry Neil Alfred
M12748
Blackwater River Correctional Facility
Inmate Mail/Parcels
5914 Jeff Ates Road
Milton, FL 32583
PRO SE

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