Opinion
CASE NO. 4:07cv201-MP/AK.
January 15, 2008
REPORT AND RECOMMENDATION
Plaintiff, an inmate incarcerated within the Florida Department of Corrections, submitted a civil rights complaint and a motion for IFP. (Docs. 1 and 2). Because Plaintiff did not fully disclose his prior history with this Court, his motion for IFP was granted and his complaint was reviewed. (Docs. 9 and 10). When the amended complaint was filed, a member of the Court's staff researched Plaintiff's name and discovered that Plaintiff had four prior cases in this district.
The Prison Litigation Reform Act of 1995 (PLRA), provides that a prisoner may not bring a civil action in forma pauperis under 28 U.S.C. § 1915:
. . . if the prisoner has, on 3 or more 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).
Plaintiff has had at least three prior prisoner actions dismissed within this District on the grounds that they were frivolous, malicious, or failed to state a claim. The dismissed cases include: case 5:03cv291 (dismissed as frivolous); 5:03cv277 (dismissed as frivolous); and 5:03cv180 (summary judgment granted in favor of Defendants because Plaintiff failed to show that Defendants' policy substantially burdened his religious exercise). It is not necessary that the express language of section 1915(g) be used when a dismissal is the equivalent of failure to state a claim. See Rivera v. Allin, 144. F.3d 719, 731 (11th Cir. 1998) abrogated on other grounds by Jones v. Bock, 127 S.Ct. 910 (2007). Such dismissals may still be counted as a "strike."
Plaintiff's allegations of retaliation, a false disciplinary report, and denial of due process do not bring him within the "imminent danger" exception. (Doc. 12).
Because Plaintiff has had at least three prior dismissals and is not under imminent danger of serious physical injury, he is not entitled to proceed in forma pauperis. Furthermore, because Plaintiff did not pay the filing fee at the time he submitted this civil rights action, this case must be dismissed. The Eleventh Circuit Court of Appeals has clarified that the proper procedure in such a situation is not to give the inmate time in which to pay the fee, rather dismissal is required if a "three striker" does not pay the filing fee at the time he submits the complaint. Dupree v. Palmer, 284 F.3d 1234 (11th Cir. 2002). Thus, this case must be dismissed under 28 U.S.C. § 1915(g).
In light of the foregoing, it is respectfully RECOMMENDED that the Order granting IFP (doc. 9) be VACATED, and this case be DISMISSED WITHOUT PREJUDICE under 28 U.S.C. § 1915(g).
IN CHAMBERS at Gainesville, Florida.
NOTICE TO THE PARTIES
A party may file specific, written objections to the proposed findings and recommendations within 15 days after being served with a copy of this report and recommendation. A party may respond to another party's objections within 10 days after being served with a copy thereof. Failure to file specific objections limits the scope of review of proposed factual findings and recommendations.