United States District Court, N.D. Florida, Tallahassee Division
REPORT AND RECOMMENDATION
CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE
proceeding pro se, is a federal prisoner currently confined
in Marianna, Florida. Plaintiff has attempted to file a case
in this Court on February 8, 2018, by submitting a civil
complaint, ECF No. 1, and a motion for in forma pauperis
status, ECF No. 2. Plaintiff contends that his constitutional
rights have been violated because Defendants Nelson and Dunn
have failed “to call a constitutional convention as
required by Article V of the United States
Constitution.” ECF No. 1 at 1.
Plaintiff's complaint cannot proceed because it does not
comply with Rule 11. Rule 11(a) provides that all pleadings,
motions, and other papers “must be signed by . . . a
party personally if the party is unrepresented.”
Fed.R.Civ.P. 11(a). The Rule also provides that a
“court must strike an unsigned paper unless the
omission is promptly corrected after being called to the
attorney's or party's attention.” Id.
This case cannot proceed on Plaintiff's unsigned
complaint. Therefore, Plaintiff's recently submitted
motion for service, ECF No. 4, must be denied.
judicial notice is taken that Plaintiff has previously filed
a number of cases in federal court. Three cases in particular
must be noted for the purpose of determining whether
Plaintiff's motion for in forma pauperis status should be
granted. 28 U.S.C. § 1915.
initiated case number 5:05cv144-WTH-GRJ in the United States
District Court, Middle District of Florida, Ocala Division.
The case was dismissed for failure to prosecute in late
October 2005. Plaintiff filed an appeal, but the Eleventh
Circuit Court of Appeals dismissed his appeal as frivolous.
ECF No. 27 of case # 5:05cv144. This dismissal counts as a
“strike” pursuant to 28 U.S.C. § 1915(g).
also initiated case number 5:04cv339-WTH-GRJ in the Middle
District of Florida. That case was dismissed for failing to
exhaust administrative remedies. ECF No. 8 of that case. Such
a dismissal also counts as a strike because when a
prisoner's claims are unexhausted, the complaint fails to
state a claim. Jones v. Bock, 549 U.S. 199, 216, 127
S.Ct. 910, 921, 166 L.Ed.2d 798 (2007); see also Rivera
v. Allin, 144 F.3d 719, 731 (11th Cir. 1998).
Plaintiff initiated case number 0:06cv61706 in the Southern
District of Florida. ECF No. 3 of that case. It was dismissed
for lack of subject matter jurisdiction. Because such a
dismissal necessarily means the case was
“‘without arguable merit' either factually or
legally, ” such a dismissal means the case was
frivolous. Davis v. Ryan Oaks Apartment, 357
Fed.Appx. 237, 238-39 (11th Cir. 2009) (citing Sun v.
Forrester, 939 F.2d 924 (11th Cir. 1991)).
has had three prior cases dismissed on the grounds that they
were frivolous, malicious, or failed to state a claim. Thus,
Plaintiff is not entitled to in forma pauperis status. 28
U.S.C. § 1915(g). Plaintiff has three qualifying
dismissals and does not allege he is under imminent danger of
serious physical injury. Instead, he challenges the actions,
or inactions, of persons who are in Congress. Plaintiff's
in forma pauperis motion should be denied and this case
dismissed. Dismissal should be without prejudice to Plaintiff
making the same allegations in a complaint for which he pays
the full $400.00 filing fee at the time he submits the
complaint. Dupree v. Palmer, 284 F.3d 1234, 1236
(11th Cir. 2002) (holding that an action must be dismissed
without prejudice when an inmate who is subject to §
1915(g) does not pay the filing fee at the time he initiates
the suit). “The prisoner cannot simply pay the filing
fee after being denied in forma pauperis status.”
respectfully RECOMMENDED that
Plaintiff's motion for leave to proceed in forma
pauperis, ECF No. 2, be DENIED pursuant to
28 U.S.C. § 1915(g), that Plaintiff's motion for
service, ECF No. 4, be DENIED along with any
other pending motions, and this case be DISMISSED
without prejudice to Plaintiff's refiling an
action if he simultaneously submits the $400.00 filing fee.
It is also RECOMMENDED that the Order
adopting this Report and Recommendation direct the Clerk of
Court to note on the docket that this cause was dismissed
pursuant to 28 U.S.C. § 1915(g).
TO THE PARTIES
fourteen (14) days after being served with a copy of this
Report and Recommendation, a party may serve and file
specific written objections to these proposed findings and
recommendations. Fed.R.Civ.P. 72(b)(2). A copy of the
objections shall be served upon all other parties. A party
may respond to another party's objections within fourteen
(14) days after being served with a copy thereof.
Fed.R.Civ.P. 72(b)(2). Any different deadline that may
appear on the electronic docket is for the Court's
internal use only and does not control. If a party fails
to object to the Magistrate Judge's findings or
recommendations as to any particular claim or issue contained
in this Report and Recommendation, that party waives the
right to challenge on appeal the District Court's order
based on the unobjected-to factual and legal conclusions.
See 11th Cir. Rule 3-1; 28 U.S.C. § 636.