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explaining that Rivera "held that the new 'three strikes' IFP provision does not violate the First Amendment right of access to the court; the separation of judicial and legislative powers; the Fifth Amendment right to due process of law; or the Fourteenth Amendment right to equal protection, as incorporated through the Fifth Amendment," and collecting cases on the types of dismissals that count as "strikes"
Summary of this case from Powell v. BermudezOpinion
Case Number: 14-61570-CIV-MORENO
08-15-2014
JIMMY KENNETH BONEY, Plaintiff, v. SCOTT HICKEY, Defendant.
Jimmy Kenneth Boney, pro se Jail No. 570607148 P.O. Box 407016 Fort Lauderdale, Florida 33340
ORDER ADOPTING MAGISTRATE'S REPORT AND RECOMMENDATION AND DISMISSING CASE WITHOUT PREJUDICE
THE MATTER was referred to the Honorable Patrick A. White, United States Magistrate Judge for a Report and Recommendation on Plaintiff's In Forma Pauperis Complaint (D.E. No. 1), filed on July 9, 2014. The Magistrate Judge filed a Report and Recommendation (D.E. No. 6) on July 24, 2014. The Court has reviewed the entire file and record. The Court has made a de novo review of the issues presented in the Magistrate Judge's Report and Recommendation and notes that Plaintiff has not filed any objections and the time for doing so has now passed. Being otherwise fully advised in the premises, it is
ADJUDGED that United States Magistrate Judge Patrick A. White's Report and Recommendation (D.E. No. 6) is AFFIRMED and ADOPTED. Accordingly, it is
ADJUDGED that Plaintiff's case is DISMISSED without prejudice. The Court notes that Plaintiff has filed numerous complaints in this Court, all of which have been dismissed for one reason or another. See Case No. 07-60122-CIV-COOKE (dismissed for failure to state a claim); Case No. 09-60124-CIV-MOORE (dismissed for lack of prosecution and failure to comply with court orders); Case No. 10-62519-CIV-COHN (dismissed for failure to state a claim). Accordingly, this case is dismissed pursuant to 28 U.S.C. § 1915(g), which prohibits prisoners from filing a civil action in forma pauperis if the prisoner, while incarcerated, has on three or more prior occasions brought an action in a court of the United States that was dismissed for failure to state a claim or for frivolity. The only exception is when a prisoner claims he is under imminent danger of serious physical injury. Plaintiff, here, is seeking the return of a wallet allegedly lost during his arrest; this claim certainly does not meet the exception to 28 U.S.C. § 1915(g). Accordingly, the Court dismisses the complaint without prejudice. It is also
ADJUDGED that all pending motions are DENIED as moot and this case is closed.
DONE AND ORDERED in Chambers at Miami, Florida, this 15 day of August, 2014.
/s/_________
FEDERICO A. MORENO
UNITE STATES DISTRICT JUDGE
Copies provided to:
United States Magistrate Judge Patrick A. White
Counsel of Record Jimmy Kenneth Boney, pro se
Jail No. 570607148
P.O. Box 407016
Fort Lauderdale, Florida 33340