Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Johnson v. McCall

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

April 30, 2018

ANTONIO JOHNSON, FDOC Inmate No. 446897, Plaintiff,
v.
JULIE McCALL, et al., Defendants.

          REPORT AND RECOMMENDATION

          ELIZABETH M. TIMOTHY CHIEF UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, an inmate of the Florida penal system proceeding pro se, initiated this action by filing a civil rights complaint under 42 U.S.C. § 1983 (ECF No. 1). As directed by the court, Plaintiff subsequently filed an amended complaint, using the court's form for Section 1983 complaints (ECF No. 14), and he also moved for and was granted leave to proceed in forma pauperis (ECF Nos. 2, 5).

         The court takes judicial notice that there are at least three cases previously filed by Plaintiff in the United States District Courts that have been dismissed as frivolous or for failing to state a claim upon which relief may be granted. Pursuant to the “three strikes” provision of the Prison Litigation Reform Act:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding 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).

         In fact, Plaintiff's status as a prisoner with “three strikes” has been determined in another civil rights complaint he previously filed in the United States District Court for the Middle District of Florida, Johnson v. Sandlin, No. 3:09cv438-J-34TEM. As provided in that case:

The Court takes judicial notice of filings brought by Plaintiff in a Court of the United States that were dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief may be granted: (1) 3:05-cv-717-J-99MMH; (2) 3:05-cv-780-J-32MCR; and, (3) 3:06-cv-762-J-25MMH.
Because Plaintiff has had three or more prior dismissals and is not under imminent danger of serious physical injury, his application to proceed in forma pauperis will be denied and this action will be dismissed without prejudice.

Johnson v. Sandlin, No. 3:09cv438-J-34TEM, Dkt. No. 4 at 2 (May 18, 2009). Thus, Plaintiff's status as a “three striker” is established.[1]

         The court additionally notes that Plaintiff failed to disclose any of the cases cited above, despite the fact that the complaint form specifically directed him to disclose information regarding all prior civil cases filed in state and federal court (ECF No. 14 at 3-5).[2] This is the sort of false statement or omission that the court in the past has subjected prisoner complaints to dismissal as malicious or abusive of the judicial process, and the reason for this is underscored by the very fact in this case that Plaintiff's failure to disclose resulted in the court's initial failure to recognize that Plaintiff was subject to the three strikes provision.

         A prisoner with three strikes is precluded from proceeding in forma pauperis in a civil action unless it can be shown that he meets the “imminent injury” exception that is provided in Section 1915(g). For this exception to be met, the court must be able to determine from the complaint that the plaintiff is under imminent danger of serious physical injury. Brown v. Johnson, 387 F.3d 1344, 1350 (11th Cir. 2004). In so doing, the court must construe the complaint liberally and accept its allegations as true. See id.; Jackson v. Reese, 608 F.2d 159, 160 (5th Cir. 1979); McAlphin v. Toney, 281 F.3d 709, 710 (8th Cir. 2002).

         In the instant case, Plaintiff's complaint is devoid of any allegations suggesting that he is under imminent danger of serious physical injury. Rather, his claims and allegations are concerned with a plea for clemency that he filed with the Defendant state officials which has been administered in a discriminatory manner. His claims in no way evidence physical injury and therefore do not meet the exception.

         Because Plaintiff is subject to section 1915(g), he is not eligible to proceed in forma pauperis. Because Plaintiff did not pay the $400.00 filing fee at the time he submitted this civil rights action, this case should be dismissed. Leave should not be provided to allow him to pay the fee. Rather, because a prisoner who is no longer entitled to proceed in forma pauperis must pay the filing fee at the time he initiates the suit, his failure to do so warrants dismissal without prejudice. Dupree v. Palmer, 284 F.3d 1234 (11th Cir. 2002); Vanderberg v. Donaldson, 259 F.3d 1321, 1324 (11th ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.