Niebla v. Timothy

Full title: JORGE NIEBLA, Plaintiff, v. UNITED STATES MAGISTRATE JUDGES ELIZABETH…

Court: United States District Court, N.D. Florida, Panama City Division

Date published: May 12, 2008

5:08CV148-SPM/AK (N.D. Fla. May. 12, 2008)

Opinion

5:08CV148-SPM/AK.

May 12, 2008

REPORT AND RECOMMENDATION

ALLAN KORNBLUM, Magistrate Judge

Plaintiff, an inmate incarcerated within the Florida Department of Corrections, has filed a complaint alleging that Magistrate Judges Timothy and Davis have denied him federal protective custody despite his many complaints to them that his life is in danger. (Doc. 1). Plaintiff has not filed the appropriate motions and other papers for leave to proceed in forma pauperis.

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 three or more prior prisoner actions dismissed on the grounds that they failed to state a claim: Case nos. 8:01CV914/TBM; 8:01CV143/TGW, and 8:00CV2306/JSM. Case nos. 3:05CV230-RV/MD, 4:05CV235-MP/AK, and 4:05CV275-MP/AK were dismissed for failure to comply with a court order and failure to prosecute. Plaintiff has also been identified as a "three striker" in the Southern District. See Case Nos. 0:02CV60676; 9:02CV81055; and 1:01CV4326. See also Case No. 4:05cv242 (case dismissed without leave to proceed because Plaintiff failed to allege an imminent danger and he has already been listed as a three striker).

The instant complaint has been reviewed and it has been determined that Plaintiff has not alleged the "imminent danger" exception cited supra. Thus, because Plaintiff has had at least three prior dismissals and does not allege imminent danger of serious physical injury, and he has not moved to proceed in forma pauperis, this action should be dismissed. The dismissal should be without prejudice to him making the same allegations in a complaint for which he pays the full $350.00 filing fee at the time of filing the complaint.

In light of the foregoing, it is respectfully RECOMMENDED that Plaintiff's complaint, doc. 1, be DISMISSED without prejudice.

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.