Opinion
Case No: 2:15-cv-617-FtM-99CM
10-13-2015
GREGORY HARRIS, Petitioner, v. BERTILA SOTO, Chief Judge, ROSA RODRIGUEZ, Judge, THOMAS REBULL, Judge, ANTONIO MARIN, Judge, MAGALIE RODRIGUEZ, DAVID GLANTZ, GRISKA MENA RODRIGUEZ, STEVEN DEMANOVICH, NATALIE SNYDER, KELLY FOSTER, JELANI DAVIS, JOHNNY BROWDY, FREDERICKA ROBERTS, CHEALY MILLER, Chief of Police, NIKEGA HILL, and JEFFERY FULKNER, Respondents.
ORDER OF DISMISSAL
This matter comes before the Court upon a "Writ to Distress Bonds Writ of Conspiracy to Kidnappe [sic] with Fraudulent Intent and Breach of the Peace" and an application to proceed in forma pauperis filed by Gregory Harris on October 5, 2015 (Doc. 1; Doc. 2). Plaintiff's complaint concerns the defendants' actions during the criminal proceedings that led to his current incarceration, and each defendant is either a judge, assistant attorney general, assistant state attorney, public defender, or police officer (Doc. 2). Petitioner appears to assert that these defendants conspired to unconstitutionally convict and sentence him. Id. Plaintiff is currently incarcerated at Franklin Correctional Institution, serving sentences for child abuse and grand theft. Id.
Because Plaintiff has filed three or more suits that were dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief may be granted, Plaintiff's motion to proceed in forma pauperis is denied, and this case is dismissed without prejudice pursuant to 28 U.S.C. § 1915(g).
I. Legal Standards
Section 1915(g) of Title 28 limits a prisoner's ability to bring a civil action in forma pauperis under certain circumstances:
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). Thus, if a prisoner has had three or more cases dismissed for one of the recited reasons, he cannot proceed in forma pauperis and must pay the filing fee in full at the time the lawsuit is initiated. Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002).
II. Analysis
The Court takes judicial notice of filings previously brought by Plaintiff in the Southern District of Florida that were dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief may be granted: (1) 1:11-cv-22828- MGC; (2) 1:12-cv-23944-JEM; (3) 1:13-cv-22314-RNS; and (4) 1:13-cv-22512-KMW. In addition, the Court has found three cases from the Southern District of Florida, and one case from the Northern District of Florida which were dismissed pursuant to 28 U.S.C. § 1915(g). See SDFL Case Nos. 1:13-cv-24417-KMM, 1:13-cv-14422-KMW, 1:13-cv-24422-KMW and NDFL Case No. 4:15-cv-366-RH-CAS.
Plaintiff does not allege that he is under imminent danger of serious physical injury, and none of the defendants named in his pleading appear to operate from Franklin Correctional Institution. Based upon the prior dismissals and because Plaintiff is not currently under imminent danger of serious physical injury, his application to proceed in forma pauperis is denied and this action is dismissed without prejudice. Plaintiff may initiate a new civil rights action by filing a new civil rights complaint form and paying the full filing fee at the time he files the action.
Finally, to the extent Plaintiff asserts that he is in custody in violation of the Constitution, he must seek relief through a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254.
The Court takes no position as to the potential merits of such a petition. --------
ACCORDINGLY, it is hereby ORDERED:
1. Plaintiff's application to proceed in forma pauperis (Doc. 2) is DENIED.
2. This case is DISMISSED without prejudice.
3. The Clerk of the Court is directed to terminate all pending motions, enter judgment accordingly, and close this case.
4. The Clerk is also directed to send Plaintiff a copy of the pre-printed 28 U.S.C. § 2254 application.
DONE and ORDERED in Fort Myers, Florida on this 13th day of October, 2015.
/s/_________
JOHN E. STEELE
SENIOR UNITED STATES DISTRICT JUDGE
SA: OrlP-4
Copies: Gregory Harris
Encl: 28 U.S.C. § 2254 petition