Opinion
CASE NO. 4:11cv335-SPM/WCS.
August 10, 2011
ORDER
THIS CAUSE comes before the Court on the magistrate judge's report and recommendation dated July 20, 2011. Doc. 4. Plaintiff has been furnished a copy and has filed objections pursuant to Title 28, United States Code, Section 636(b)(1). Doc. 5. Despite the objections, I have determined that the report and recommendation is correct and should be adopted.
Although Plaintiff's objections are difficult to understand, he seems to argue that his prior cases should not be counted as strikes because he eventually paid the filing fees from wages he received through his prison job. This argument is unavailing because the Prison Litigation Reform Act requires a plaintiff to eventually pay the filling fee even if he is allowed to proceed initially without prepayment of the entire fee. 28 U.S.C. § 1915.
Additionally, Plaintiff appears to argue that he did not file case numbers 8:96cv1900 and 4:05cv63, which the report and recommendation counts as strikes. A review of Court records confirms that Plaintiff falls under the three strikes provision of 28 U.S.C. § 1915(g).
First, a review of the complaint from case number 4:05cv63, which is handwritten and contains Plaintiff's signature, shows that it was filed by Plaintiff. Next, although the Court was unable to access documents online from 8:96cv1900, the decision on appeal from the Eleventh Circuit in 5:10cv80 (No. 10-12204-G) recognizes that Plaintiff filed suits in 1996 and 1999 that were dismissed as frivolous. The order from the district court in 5:10cv80 attributes 8:96cv1900 to Plaintiff.
The dismissals in case numbers 8:96cv1900, 4:05cv63, and 5:10cv80 disqualify Plaintiff from proceeding on appeal in forma pauperis except in a case of imminent danger of serious physical injury. Plaintiff does not present a claim of imminent danger of serious physical injury. Accordingly, it is
ORDERED AND ADJUDGED:
1. The magistrate judge's report and recommendation (doc. 4) is ADOPTED and incorporated by reference in this order.
2. Plaintiff's motion to proceed in forma pauperis (doc. 2) is denied pursuant to 28 U.S.C. § 1915(g).
3. Plaintiff's complaint (doc. 1) is dismissed without prejudice for abuse of the judicial process.
4. The clerk shall note on the docket that this case was dismissed pursuant to 28 U.S.C. § 1915(g).
DONE AND ORDERED.
Exhibit
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ____________________ No. 10-12204-G ___________________ TOMMY SPAN, 5:10-cv-80-oc-26GRJ Plaintiff-Appellant, versus GARY S. BARDERS, Sheriff's Office, BILL BROOKS, Deputy Sheriff, Defendants — Appellees. _______________________________ Appeal from the United States District Court for the Middle District of Florida _______________________________ Before: BLACK, HULL and WILSON, Circuit Judges.BY THE COURT:
Tommy Span, in the district court, filed a notice of appeal of the dismissal of his civil righs complaint, pursuant to 42 U.S.C. § 1983, and a motion for leave to proceed on appeal. The district court denied leave to proceed, certifying that the appeal was frivolous and not taken in good faith. However, the district court did not assess a $455.00 appellate filing fee, as is now required under the Prison Litigation Reform Act of 1995 (April 26, 1996). See 28 U.S.C. § 1915 (as amended).
Span has consented to pay the $455.00 filing fee, using the partial payment plan described under 28 U.S.C. § 1915 (as amended) and has filed a motion for leave to proceed on appeal. Thus, the only remaining issue is whether the appeal is frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i).
In general, a dismissal without prejudice is not an abuse of discretion. See Dynes v. Army Air Force Exch. Serv., 720 F.2d 1495, 1499 (11th Cir. 1983). Such a dismissal should be allowed absent some plain prejudice other than the mere prospect of a second lawsuit. Kotzen v. Levine, 678 F.2d 140, 140 (11th Cir. 1982); see also Payne v. Panama Canal Co., 607 F.2d 155, 158 (5th Cir. 1979) (noting that a dismissal without prejudice does not operate as a bar to a subsequent suit).
A review of the record shows that Span claimed on his complaint form that he never filed a federal lawsuit regarding his confinement and that he never filed a lawsuit that had been dismissed as frivolous or malicious. A review of the district court docket reveals two lawsuits filed in 1996 and 1999 by Span under the same prisoner number as he used in this case, which were dismissed as frivolous. Thus, Span answered incorrectly on his complaint form. Further, Span was not forthcoming in explaining his failure to disclose these cases to the district court, instead claiming that he never filed the suits in question. Thus, the district court did not err in finding that Span has abused the judicial process by failing to disclose previous lawsuits that he had filed. As such, the district court did not abuse its discretion by dismissing Span's suit without prejudice.
For these reasons, this Court now finds that the appeal is frivolous, DENIES leave to proceed, and DISMISSES the appeal.
December 02, 2010
Sheryl L. Loesch
United States District Court
Golden-Collum Memorial Federal Building U.S.Courthouse
207 N. W. Second Street
Ocala, FL 34475
Tommy Span
Everglades CI
P.O. Box 949000
Miami, FL 33194
Appeal Number: 10-12204-G
Case Style: Tommy Span v. Gary Barders, et al
District Court Docket No: 5:10-cv-00080-RAL-GRJ
The enclosed certified copy of this Court's Order of Dismissal is issued as the mandate of this court. See 11th Cir. R. 41-4.
The district court clerk is requested to acknowledge receipt on the copy of this letter enclosed to the clerk.
Sincerely,
JOHN LEY, Clerk of Court
Reply to: Deborah R. Owens, G/rvg
Phone #: (404) 335-6180
Enclosure(s) UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA OCALA DIVISION et al.
DIS-4 Multi-purpose dismissal letter TOMMY SPAN, Plaintiff, v. Case No. 5:10-cv-80-Oc-26GRJ GARY S. BARDERS, , Defendants.ORDER
By order dated April 12, 2010, the Court directed Plaintiff to show cause why this case should not be dismissed for his failure to answer truthfully the questions on his civil complaint form which inquired about his prior lawsuits. (Doc. 14). The Court found that although Plaintiff had responded on the form that he did not file previous civil actions, and had not initiated lawsuits or appeals from lawsuits in federal court that have been dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted, a review of the Pacer Service Center's U.S. Party/Case index reflects that this statement is untrue. Id.Specifically, the Court found that Plaintiff had initiated two prior civil cases in federal court while he was a prisoner —Span v. Straight, 8:96-cv-1900-SCB (Middle District of Florida 1996) (the Eleventh Circuit Court of Appeals found that Plaintiff's complaint was frivolous); Spann v. Spooner, et. al., 5:99-cv-7-WTH (Middle District of Florida 1999) (District Court dismissed Plaintiff's complaint as frivolous).
In response to the show cause order, Plaintiff maintains that he did not file the lawsuits in 1996 or 1999 in the Middle District of Florida under prisoner number is 046141. However, the Pacer Service Center's U.S. Party/Case Index does indeed reflect that Plaintiff initiated the 1996 and 1999 cases under prisoner number 046141, which is the same number used in the instant case.
Accordingly, Plaintiff's response and explanation to the show cause order is unavailing. The Court has authority to control and manage matters such as this case pending before it, and Plaintiff's pro se status does not excuse him from conforming to acceptable standards in approaching the Court. The Court will not tolerate false responses or statements in any pleading or motion filed before it.
The appropriate sanction for Plaintiff's abuse of judicial process in not providing the Court with true responses is to dismiss this case without prejudice. See Rivera v. Allin, 144 F.3d 719, 731 (11th Cir. 1998).
This sanction is not too severe under these circumstances, as Plaintiff is free to re-file if he so chooses.
ACCORDINGLY, it is ORDERED AND ADJUDGED that this case is DISMISSED. The clerk is directed to enter judgment dismissing this case without prejudice, terminate any pending motions/deadlines, and to CLOSE the file. DONE and ORDERED at Tampa, Florida, on April 23, 2010.