Opinion
8:23-cv-817-CEH-JSS
04-27-2023
RANDY A. HART, Plaintiff, v. AUBURNDALE POLICE DEPARTMENT, Defendant.
ORDER
CHARLENE EDWARDS HONEYWELL, UNITED STATES DISTRICT JUDGE.
Mr. Hart, a Florida pre-trial detainee at the Polk County Jail, initiated this action pro se by filing a civil rights complaint (Doc. 1) in which he alleges officers falsely arrested him. Mr. Hart's failure to pay the filing fee is construed as a request for leave to proceed in forma pauperis under 28 U.S.C. § 1915.
Section 1915(g) provides:
(g) 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).
Although Mr. Hart is a pre-trial detainee, he is subject to § 1915(g) because “the term ‘prisoner' means any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program.” 28 U.S.C. § 1915(h).
Mr. Hart's prior cases dismissed as either frivolous, malicious, or for failing to state a claim upon which relief may be granted include Hart v. Judd, 8:11-cv-1590-VMC-TBM (M.D.Fla.); Hart v. State of Florida, 8:13-cv-2533-JSM-MAP (M.D.Fla.); Hart v. Knight, 8:16-cv-1337-VMC-JSS (M.D.Fla.); and Hart v. Hays, 8:16-cv-1391-EAK-TGW (M.D.Fla.). Because Mr. Hart has had at least three prior dismissals that qualify under Section 1915(g) and because he alleges no facts showing he is under imminent danger of serious physical injury, he may not proceed in forma pauperis. He may initiate a new civil rights case by filing a civil rights complaint and paying the filing fee in full.
Accordingly, the complaint (Doc. 1) is DISMISSED WITHOUT PREJUDICE to filing a new complaint, in a new case with a new case number, upon the payment of the filing fee. The CLERK is directed to close this case.
ORDERED.