Opinion
3:24cv571/AW/ZCB
11-13-2024
WILLIAM TED HOLLIDAY, FDOC Inmate No. P27800, Plaintiff, v. MELANIE O'CONNER, et al., Defendants.
REPORT AND RECOMMENDATION
ZACHARY C. BOLITHO, UNITED STATES MAGISTRATE JUDGE
Plaintiff is an inmate of the Florida Department of Corrections (FDOC). He filed this pro se civil rights action on November 6, 2024. (Doc. 1). Upon review of Plaintiff's litigation history, the Court has determined that he is a three-striker. This means that he was required to pay the filing fee upon initiating this suit because he is ineligible to proceed IFP. Plaintiff did not pay the filing fee, so for that reason, this case should be dismissed.
I. Discussion
Under the three strikes provision, a prisoner cannot proceed IFP in a civil action if he has “on 3 or more prior occasions, while incarcerated . . ., 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.” 28 U.S.C. § 1915(g). The statute provides a narrow exception for instances where the prisoner is “under imminent danger of serious physical injury.” Id.; see also Daker v. Bryson, 784 Fed.Appx. 690, 692 (11th Cir. 2019) (explaining that the “sole exception to the three strikes bar is where the prisoner is under imminent danger of serious physical injury”).
A prisoner who is ineligible to proceed IFP must pay the full filing fee when the lawsuit is filed. Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002). The Eleventh Circuit has explained that when the district court determines that the prisoner is ineligible to proceed IFP pursuant to § 1915(g), the proper procedure is for the district court to dismiss the complaint without prejudice. Id. According to Dupree, a prisoner cannot avoid dismissal by simply paying the filing fee at a later time because the filing fee is due at the time the prisoner initiated the suit. Id.; see also Vanderberg v. Donaldson, 259 F.3d 1321, 1324 (11th Cir. 2001) (stating that after three meritless suits, a prisoner must pay the full filing fee at the time he initiates suit).
The Court has reviewed Plaintiff's litigation history as disclosed in the Complaint and on the Court's Case Management/Electronic Case Filing (CM/ECF) database.(Doc. 1 at 14-17).That review has revealed that Plaintiff (while a prisoner) previously filed at least three actions or appeals in federal courts that were dismissed as malicious or for failure to state a claim on which relief can be granted. More specifically:
Federal Rule of Evidence 201 permits a court to “judicially notice a fact that is not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b)(2).
The Court refers to the page numbers automatically assigned by the Court's electronic filing system.
• Holliday v. McNeil, et al., 2:10cv12797-BAF (E.D. Mich. Sept. 1, 2010) (dismissing Plaintiff's complaint as frivolous and for failure to state a claim on which relief can be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B));
• Holliday v. McNeil, et al., 4:09cv182-SPM-WCS (N.D. Fla. July 7, 2010) (dismissing Plaintiff's complaint for failure to state a claim, pursuant to 28 U.S.C. § 1915(e)(2)); and
• Holliday v. Mejia, et al., 3:05cv312-RV-EMT (N.D. Fla. July 12, 2006) (dismissing Plaintiff's complaint for failure to state a claim, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)).
Plaintiff identified himself with FDOC inmate #P27800 in his pleadings in those cases.
Because Plaintiff had three strikes when he commenced this case, he cannot proceed IFP and should have paid the filing fee at the time of filing. He failed to do so. And he makes no allegations that would support a finding that he is “under imminent danger of serious physical injury” as required for the exception in § 1915(g) to apply. Dismissal without prejudice is, therefore, appropriate.
II. Conclusion
Accordingly, it is respectfully RECOMMENDED that:
1. This action be DISMISSED without prejudice, under 28 U.S.C. § 1915(g), based on Plaintiff's failure to pay the filing fee when he commenced this case.
2. The Clerk of Court be directed to enter judgment accordingly and close this case.
Notice to the Parties
Objections to these proposed findings and recommendations must be filed within fourteen days of the date of the Report and Recommendation. Any different deadline that may appear on the electronic docket is for the Court's internal use only and does not control. An objecting party must serve a copy of the objections on all other parties. A party who fails to object to the magistrate judge's findings or recommendations contained in a report and recommendation waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636.