United States District Court, N.D. Florida, Tallahassee Division
OMAR F. BARNES, D.O.C. # P02429, Plaintiff,
SECRETARY JULIE JONES, Defendant.
REPORT AND RECOMMENDATION
CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE.
14, 2018, the pro se Plaintiff initiated this case by
submitting a hand-written civil rights complaint, ECF No. 1,
and an in forma pauperis motion, ECF No. 2. Although
Plaintiff's motion sufficiently demonstrates that
Plaintiff lacks funds in his inmate bank account to pay the
filing fee, his motion, ECF No. 2, cannot be granted as
previously sought to initiate this same claim in another case
filed in this Court. Plaintiff filed case number
4:17cv582-MW/CAS on December 18, 2017, but it was dismissed
sua sponte in April 2018 because Plaintiff's complaint
(and the attachments thereto) sufficiently demonstrated that
he had not exhausted administrative remedies. See
ECF No. 13 at 6 of that case; ECF Nos. 16, 19.
the Eleventh Circuit had held in Rivera v. Allin,
144 F.3d 719 (11th Cir. 1998), that “[a] claim that
fails to allege the requisite exhaustion of remedies is
tantamount to one that fails to state a claim upon which
relief may be granted.” Rivera, 144 F.3d at
731. However, the Supreme Court subsequently held that
exhaustion is not a pleading rule that a prisoner is required
to demonstrate in his complaint but, rather, an affirmative
defense. Jones v. Bock, 549 U.S. 199, 211-12, 127
S.Ct. 910, 919, 166 L.Ed.2d 798 (2007).
The Court reasoned that because Congress did not specifically
include exhaustion in the list of grounds for sua sponte
dismissal under § 1915A, the normal pleading rules
applied. Id. 549 U.S. at__, 127 S.Ct. at 920. Under
the normal pleading rules, ‘[a] complaint is subject to
dismissal for failure to state a claim if the allegations,
taken as true, show the plaintiff is not entitled to
relief.' Id. As a result, a complaint may be
dismissed if an affirmative defense, such as failure to
exhaust, appears on the face of the complaint. See
Id. at 920-21 (cautioning that the conclusion that
exhaustion is not a pleading requirement ‘is not to say
that failure to exhaust cannot be the basis for dismissal for
failure to state a claim.'). Otherwise, exhaustion and
other affirmative defenses must be raised in a responsive
pleading. See Id. at 919-21; see Fed. R.
Civ. P. 8(c).
Anderson v. Donald, 261 Fed.Appx. 254, 255 (11th
Cir. 2008). Thus, although courts should not depart from the
usual practice of treating exhaustion as an affirmative
defense, Jones, 549 U.S. at 212, 127 S.Ct. at 919,
when it appears on the face of a complaint that the case
fails to state a claim, it may be dismissed pursuant to
§ 1915(e)(2)(B). 549 U.S. at 215-16, 127 S.Ct. at 921;
see also Anderson v. Donald, 261 Fed.Appx. 254, 255
(11th Cir. 2008) (quoting Jones); Soler v.
Bureau of Prisons, No. 3:03cv488, 2007 WL 496472, at *2
(N.D. Fla. Feb. 12, 2007) (dismissing claims sua sponte where
“the allegations in the complaint, coupled with the
numerous and various exhibits attached thereto, presented an
adequate factual record and made clear that those claims had
not been exhausted.”). In such a case, it also stands
for a dismissal for failure to state a claim because
“the allegations, taken as true, show the plaintiff is
not entitled to relief.” Jones, 549 U.S. at
215, 127 S.Ct. at 920-21.
Plaintiff's prior case, case number 4:17cv582-MW/CAS, it
was dismissed for both failure to exhaust and failure to
state a claim. It counts as a “strike” under 28
U.S.C. § 1915(g). Anderson, 261 Fed.Appx. at
255-56; Okpala v. Drew, 248 Fed.Appx. 72, 72 (11th
Cir. 2007) (affirming dismissal of Bivens action for
failure to exhaust administrative remedies and failure to
state a claim where affirmative defense appeared on the face
of the complaint); Nelson v. Singer, No.
3:12-CV-361-J-20JRK, 2013 WL 2285088, at *1 (M.D. Fla. May
22, 2013) (concluding that dismissal for failure to exhaust
administrative remedies counts as a strike and following
Anderson and Okpala).
addition, judicial notice is taken that Plaintiff filed case
number 3:09cv573-HES-TEM in the Middle District of Florida in
June 2009. That case was dismissed on July 7, 2009,
as frivolous by United States District Judge Harvey
Schlesinger. ECF No. 7 of that case. That case counts as
Plaintiff's second “strike.” Plaintiff also
filed case number 6:15cv329-GKS-GJK in the Middle District of
Florida in March 2015. That case was dismissed on April 1,
2015, for failure to state a claim by United States District
Judge G. Kendall Sharp. ECF No. 10 of that case. Plaintiff
listed this case in his complaint, ECF No. 1 at 5, and it
counts as Plaintiff's third “strike” under 28
U.S.C. § 1915(g).
Prison Litigation Reform Act of 1995 (PLRA), which was
enacted on April 26, 1996, provides that a prisoner may not
bring a civil action in forma pauperis under 28 U.S.C. §
1915 if he “has, on 3 or more occasions . . . brought
an action or appeal . . . 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). Accordingly, Plaintiff may not proceed
in this case with in forma pauperis status unless his
complaint alleges sufficient facts showing Plaintiff
“is under imminent danger of serious physical
complaint does not present allegations of imminent danger.
ECF No. 1. Instead, Plaintiff seeks to litigate a claim
concerning the digital music players that are permitted in
prison. Id. at 6-8. Plaintiff is not entitled to
proceed with in forma pauperis status and his motion for
leave to do so should be denied and this action 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 of filing 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 any other pending motions be
DENIED, 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