Smith v. Wilson

• Court: District Court, M.D. Florida
• Decided: August 11, 2025
• Docket: 8:24-cv-01892
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

HERMAN LEE SMITH, SR.,

Plaintiff,

v. CASE NO. 8:24-cv-1892-SDM-TGW

OFFICER WILSON,

Defendant. ____________________________________/

ORDER

Smith filed a civil rights complaint and an earlier order (Doc. 7) grants him leave to proceed in forma pauperis. Defendant Wilson accepted service of process and moves to strike Smith’s action under the “three-strikes” provision in 28 U.S.C. § 1915(g), which provides: 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.

“[F]ederal courts in this circuit may properly count as strikes lawsuits or appeals dismissed as frivolous, malicious or failing to state a claim upon which relief may be granted.” Rivera v. Allin, 144 F.3d 719, 732 (11th Cir. 1998), abrogated on other grounds by Jones v. Bock, 549 U.S. 199 (2007). Smith’s actions that qualify as a “strike” under Section 1915(g) include Smith v. Joseph, No. 6:24-cv-1019-CEM-LHP (M.D. Fla. July 9, 2024); Smith v. Walker, 6:24-cv-644-WWB-RMN (M.D. Fla. May 5, 2024); and Smith v. Tomson, 1:21-cv-23739-DMM (S.D. Fla. Dec. 15, 2021). And most recently, both Smith v. Wilson, 8:24-cv-2181-MSS-LSG (M.D. Fla. Oct. 17,

2024), and Smith v. Walker, 6:24-cv-1976-WWB-EJK (M.D. Fla. Nov. 4, 2024), which were dismissed based on the “three-strikes” provision in Section 1915(g). The present civil rights complaint alleges that in August 2024, Defendant Wilson intentionally injured Smith’s hand. The “under imminent danger” exception to preclusion under Section 1915(g) is limited to present danger; past danger is

insufficient. See Daker v. Ward, 999 F.3d 1300, 1310–11 (11th Cir. 2021) (“To satisfy this exception, the prisoner must show he is in imminent danger at the time that he seeks to file his suit in district court.”) (internal quotation omitted); 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 § 1915(g).”); see also Daker v. Robinson, 802 F. App’x 513, 515 (11th Cir. 2020) (“[P]ast harm is insufficient to meet the imminent-danger requirement.”) (citing Medberry). Because he has had three or more dismissals that qualify under Section

1915(g) and because he is not under imminent danger of serious physical injury, Smith is not entitled to proceed in forma pauperis. See Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (“The purpose of the PLRA is to curtail abusive prisoner litigation.”). This preclusion against proceeding in forma pauperis is without regard to the merits of the present civil rights complaint. Smith may initiate a new civil rights action by both filing a civil rights complaint and paying the $405.00 filing fee. Wilson’s motion (Doc. 29) to strike the second amended complaint is GRANTED. The earlier order (Doc. 7) granting Smith leave to proceed in forma pauperis is VACATED, and under Section 1915(g), the second amended complaint (Doc. 9) is DISMISSED without prejudice to a new action, a new case number, and the payment of the $405.00 filing fee. The clerk must CLOSE this case. ORDERED in Tampa, Florida, on August 11, 2025. Mis Wiwryelucy STEVEN D. MERRYDAY UNITED STATES DISTRICT JUDGE

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