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Span v. Jones

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

June 18, 2019

TOMMY SPAN, Plaintiff,
v.
JULIE L. JONES, Defendant.

          REPORT AND RECOMMENDATION

          HOPE THAI CANNON, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Tommy Span initiated this action on June 4, 2019, by filing a civil rights complaint under 42 U.S.C. § 1983 (ECF Doc. 1) and motion to proceed in forma pauperis (ECF Doc. 2). After reviewing Plaintiff's complaint and litigation history, the undersigned concludes Plaintiff's motion to proceed in forma pauperis should be denied and this case dismissed under 28 U.S.C. § 1915(g), because Plaintiff is barred from proceeding in forma pauperis and failed to pay the filing fee upon initiating this suit.

         Plaintiff is an inmate of the Florida Department of Corrections (“FDOC”) currently confined at Everglades Correctional Institution. In 1975, Plaintiff was convicted of second-degree murder and sentenced to life in prison with the possibility of parole. Although somewhat difficult to decipher, Plaintiff's complaint alleges: (1) the FDOC submitted a file to the parole commission in 1996 which contained a July 2, 1975, “post-sentence investigation”; (2) the “post-sentence investigation” falsely indicated Plaintiff told a sheriff's deputy[1] that he would kill the deputy and anyone associated with his arrest; (3) the FDOC failed to investigate the veracity of the “post-sentence investigation”; and (4) relying on this false information, the parole commission denied Plaintiff parole in 1997. ECF Doc. 1 at 2-5. Plaintiff appears to seek $10, 000, 000 from Julie Jones, the former Secretary of the FDOC. ECF Doc. 1 at 1.

         Title 28 U.S.C. § 1915(g) prohibits a prisoner from proceeding in forma pauperis under certain circumstances:

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.

         A prisoner who is barred from proceeding in forma pauperis must pay the filing fee at the time he initiates his lawsuit, and failure to do so warrants dismissal of his case without prejudice. See Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (holding that “the proper procedure is for the district court to dismiss the complaint without prejudice when it denies the prisoner leave to proceed in forma pauperis pursuant to the provisions of § 1915(g)” because the prisoner “must pay the filing fee at the time he initiates the suit”); Vanderberg v. Donaldson, 259 F.3d 1321, 1324 (11th Cir. 2001) (stating that after three meritless suits, a prisoner must pay the full filing fee at the time he initiates suit). The only exception is if the prisoner alleges that he is “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g); see also Brown v. Johnson, 387 F.3d 1344 (11th Cir. 2004).

         Plaintiff is a three-striker, as recognized by the United States District Court for the Northern District of Florida. See Span v. Buss, No. 4:11cv335-SPM-WCS, ECF Docs. 4, 6 (N.D. Fla. Aug. 10, 2011) (dismissing case pursuant to § 1915(g)'s three-strikes bar and identifying qualifying strikes).[2] All the qualifying dismissals were entered before Plaintiff's filing of this case.

         As Plaintiff has three strikes, he may not litigate this case in forma pauperis unless he demonstrates he is “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g); Brown, supra. Plaintiff's allegations do not make that showing. Accepting the allegations of Plaintiff's complaint as true, they fail to make a colorable showing that he is in imminent danger of serious physical injury because they concern events that happened in the 1970s and 1990s. Because Plaintiff is barred from proceeding in forma pauperis and failed to pay the filing fee at the time he filed this § 1983 action, this case should be dismissed under § 1915(g).

         Plaintiff's complaint could also be interpreted as a challenge to his continued incarceration. To the extent it is, such a claim must be brought in a habeas corpus petition under 28 U.S.C. § 2254, not a civil rights complaint under 42 U.S.C § 1983. See Hutcherson v. Riley, 468 F.3d 750, 754 (11th Cir. 2006) (“[I]f the relief sought by the inmate would either invalidate his conviction or sentence or change the nature or duration of his sentence, the inmate's claim must be raised in a § 2254 habeas petition, not a § 1983 civil rights action.”); see also Thomas v. Crosby, 371 F.3d 782, 787 (11th Cir. 2004) (holding state prisoner's challenge to parole decision is subject to § 2254's restrictions). Even if Plaintiff's complaint were treated as a habeas corpus petition, it would still be subject to dismissal. See Hutcherson, 468 F.3d at 755 (“Because Hutcherson's § 1983 complaint is the functional equivalent of a habeas corpus petition, we consider whether Hutcherson can satisfy the procedural and exhaustion requirements set forth in AEDPA.”).

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) establishes a 1-year period of limitation for a state prisoner to file a federal habeas petition. 28 U.S.C. § 2244(d)(1). The limitations period runs from the latest of:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the ...

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