Opinion
Case No: 2:18-cv-171-FtM-38CM
04-02-2018
DAVID BAKER, JR. , Plaintiff, v. STATE OF FLORIDA, FORT MYERS POLICE DEPARTMENT, KATHLEEN A. SMITH, STEPHEN B. RUSSELL, LINDA DOGGETT, ERIN CASEY, RAY BECK, CITY OF FORT MYERS, JUDGE FULLER, JEAN RAFAEZ, EMELIA SANTOS, MIGUEL HERNANDEZ, MICHAEL A. COLOMBO, JR. , CHRISTINE BENNETT, ANNE MARIE CRAFT, BAR ASSOCIATION and LEE COUNTY SHERIFF'S DEPARTMENT, Defendants.
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This matter comes before the Court upon initial review of the file. Plaintiff David Baker, Jr., who is an inmate in the Lee County Jail, initiated this action by filing a "Complaint for Violation of Civil Rights/Tort Civil Suit" (Doc. 1, "Complaint"). Plaintiff accompanied the filing of his Complaint with a request to proceed in forma pauperis (Doc. 2). The Complaint is not on the approved form. Nonetheless, it would be futile to direct Plaintiff to file an amended complaint on the approved form because Plaintiff is a three-strike litigant. Thus, the Court will dismiss the Complaint to Plaintiff re-filing the complaint in a new action accompanied by the requisite $400 filing fee.
In pertinent part, The Prison Litigation Reform Act (PLRA) contains the following subsection:
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 claims upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.28 U.S.C. § 1915(g). The Court takes judicial notice of the following filings brought by Plaintiff in a federal court that qualify as a dismissal under § 1915(g):
• David Baker, Jr. v. John J. McDougall, et al., Case No. 2:99-cv-328-25D, (M.D. Fla. July 15, 1999) (dismissing case for failure to exhaust administrative remedies);
• David Baker, Jr. v. Keefe Commissary Network Sales, Case No. 2:99-cv-406-24D, (M.D. Fla. Aug. 16, 1999) (dismissing complaint as sanction for Plaintiff providing false statements on complaint form);
• David Baker, Jr. v. John J. McDougal et al., Case No. 2:99-cv-405-25D, (M.D. Fla. Aug. 19, 1999) (dismissing complaint as sanction for Plaintiff providing false statements on complaint form);
• David Baker, Jr. v. Lee County Sheriff John J. McDougal et al., Case No. 2:99-cv-389-23D, (M.D. Fla. Aug. 31, 1999) (dismissing complaint as "frivolous");
• David Baker, Jr. v. John J. McDougall, et al., Case No. 2:99-cv-431-18, (M.D. Fla. Sept. 22, 1999) (dismissing case a "frivolous").
Dismissal for failure to exhaust administrative remedies is "tantamount to one that fails to state a claim upon which relief may be granted." Rivera v. Allin, 144 F.3d 719, 731 (11th Cir. 1998) (abrogated on other grounds by Jones v. Bock, 549 U.S. 199 (2007)).
Dismissal for lying under penalty of perjury on complaint form about existence of prior lawsuit constitutes "abuse of the judicial process" and counts as a strike under 28 U.S.C. § 1915(g). Rivera, 144 F.3d at 731. --------
Because Plaintiff is currently incarcerated, has had three or more qualifying dismissals, and is not under imminent danger of serious physical injury, this action will be dismissed without prejudice to Plaintiff filing a new civil rights complaint form and paying the full $400 filing fee at the time the complaint is filed.
ACCORDINGLY, it is hereby ORDERED:
1. This case is DISMISSED without prejudice under 28 U.S.C. § 1915(g).
2. The Clerk of Court is directed to terminate any pending motions, close this case, and enter judgment accordingly.
DONE and ORDERED in Fort Myers, Florida this 2nd day of April, 2018.
/s/ _________
SHERI POLSTER CHAPPELL
UNITED STATES DISTRICT JUDGE SA: FTMP-1
Copies: All Parties of Record