Rolle v. Sherrill

Full title: RANDALL LAMONT ROLLE, Plaintiff, v. WILLIAM C. SHERRILL, et al., Defendants

Court: United States District Court, N.D. Florida, Tallahassee Division

Date published: Oct 17, 2007

Case No. 4:07cv262/SPM/MD (N.D. Fla. Oct. 17, 2007)

Opinion

Case No. 4:07cv262/SPM/MD.

October 17, 2007

REPORT AND RECOMMENDATION

MILES DAVIS, Magistrate Judge

Plaintiff, an inmate of the Florida penal system proceeding pro se, commenced this action on June 3, 2007 by filing a civil rights complaint under 42 U.S.C. § 1983 (doc. 1). He also filed a motion for permanent injunction (doc. 3) and a motion to proceed in forma pauperis (doc. 6). Plaintiff did not submit any money for the filing fee at the time he submitted the complaint. Thereafter, plaintiff filed an amended complaint (doc. 8). On October 10, 2007 Magistrate Judge Kornblum entered an order of recusal, directing that the case be reassigned because he was a named defendant.

Plaintiff is not entitled to proceed in forma pauperis in the federal courts because he has already incurred three "strikes" under 28 U.S.C. § 1915(g). The in forma pauperis statute provides:

In no event shall a prisoner bring a civil action . . . 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). Plaintiff is well aware of this section as evidenced by this Court's recognition of plaintiff's status as a "three striker" in Rolle v. Dilmore, case number 4:07cv317/MP/WCS. See docs. 4, 6 and 7 of that case. As set forth in the Report and Recommendation in that case, plaintiff previously initiated a civil rights case in this Court, case number 4:06cv373/MP/WCS, which was dismissed for failure to state a claim on December 22, 2006. See docs. 19, 24 and 25 of that case. Another civil rights case in this court, 4:06cv406/MP/WCS, was similarly dismissed on December 22, 2006 as barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). See docs. 19, 24 and 25 of that case. Plaintiff also filed a § 1983 case in the Middle District of Florida on January 19, 2007, case number 3:07cv48/VMC/MCR. That case was summarily dismissed on January 25, 2007 under 28 U.S.C. § 1915(e)(2) for failure to state a claim. See docs. 3 and 4 of that case. Plaintiff was incarcerated at the time he filed these cases.¹

1 Those cases may be positively identified as having been filed by plaintiff because they bear his DOC (Department of Corrections) number: U02521.

Thus, by the time plaintiff brought the instant action, he knew that he had three strikes and could not proceed in forma pauperis. Plaintiff's allegations in the instant complaint do not entitle him to avoid the bar of § 1915(g), as they do not suggest he is under imminent danger of serious physical injury. Rather, plaintiff's complaint concerns the alleged deprivation of his rights by various judges of this Court when they dismissed his civil rights actions for failure to state a claim under Heck v. Humphrey, supra. Because plaintiff did not pay the filing fee at the time he submitted this civil rights action, and because it plainly appears that plaintiff is not entitled to proceed in forma pauperis, this case must be dismissed under § 1915(g). Leave should not be provided so that he can 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 (11^th Cir. 2002).

Accordingly, it is respectfully RECOMMENDED:

1. That this case be DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1915(g).

2. That all pending motions be DENIED as moot.

3. That the clerk be directed to close the file.

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within ten days after being served a copy hereof.Any different deadline that may appear on the electronic docket is for the court's internal use only, and does not control. A copy of any objections shall be served upon any other parties. Failure to object may limit the scope of appellate review of factual findings. See 28 U.S.C. § 636; United States v. Roberts, 858 F.2d 698, 701 (11^th Cir. 1988).