United States District Court, N.D. Florida, Tallahassee Division
REPORT AND RECOMMENDATION
MICHAEL J. FRANK, UNITED STATES MAGISTRATE JUDGE
before this court is the Defendant's Motion to Dismiss
and memorandum of law (ECF Nos. 20, 21) and the
Plaintiff's response thereto (ECF No. 22). Upon review of
the record and the filings of the party, the undersigned
recommends that this action be dismissed, without prejudice,
pursuant to 28 U.S.C. § 1915(g).
commenced this action by filing a complaint pursuant to 15
U.S.C. § 1692 (ECF No. 1) against the Defendant Ally
Financial Inc. Plaintiff's complaint contains seven
counts, including claims for breach of contract, defamation,
and violations of the Fair Debt Collection Practices Act, 15
U.S.C. § 1692, et seq. (Id.).
Plaintiff also filed a motion for leave to proceed in
forma pauperis. (Doc. 15). After Plaintiff filed his
motion to proceed in forma pauperis, the Defendant
filed a motion to dismiss. Defendant argues that this action
should be dismissed with prejudice because Plaintiff has
filed at least three suits in Federal Courts that have been
dismissed for a failure to state a claim or as frivolous
pursuant to 28 U.S.C. § 1915. Plaintiff filed a
response, in which he concedes that he is in custody and has
filed at least three cases that were dismissed for failure to
state a claim or as frivolous pursuant to 28 U.S.C. §
1915. Plaintiff seeks a stay in this case until he is
released from custody.
federal in forma pauperis statute, codified at 28
U.S.C. § 1915, “generally authorizes courts to
waive ordinary filing fees for an indigent litigant seeking
to bring a lawsuit.” Pinson v. Samuels, 761
F.3d 1, 4 (D.C. Cir. 2014) (citing 28 U.S.C. §
1915(a)(1)). In light of “widespread concerns that
inmates had been flooding the courts with meritless claims,
Congress enacted the Prison Litigation Reform Act
(PLRA).” Id. The Prisoner Litigation Reform
Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321 (1996), was
enacted in “an effort to stem the flood of prisoner
lawsuits in federal court.” Harris v. Garner,
216 F.3d 970, 972 (11th Cir. 2000) (en banc); Gibbs v.
Cross, 160 F.3d 962, 966 (3d Cir. 1998) (“Congress
[in enacting the ‘three strikes' provision] was
clearly concerned with continuing to afford in forma
pauperis filing status to inmates who had a history
suggestive of abusing the judicial system.”).
pursuit of that goal, 28 U.S.C. § 1915(g) prohibits a
prisoner from proceeding in forma pauperis if the
prisoner previously filed three or more actions that were
dismissed for frivolity, maliciousness, or for failure to
state a claim. See 28 U.S.C. § 1915(g). The
statute provides in relevant part:
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).
statute does not banish such litigants from the courthouse.
Rather, a prisoner who is no longer entitled to proceed
in forma pauperis simply must pay the filing fee at
the time he initiates his lawsuit. Ciarpaglini v.
Saini, 352 F.3d 328, 329 (7th Cir. 2003) (“This
does not mean he cannot proceed in any civil suit; it just
means he must pay a filing fee unless he meets the imminent
danger statutory exception.”).
to pay the filing fee at the time a Plaintiff submits the
complaint warrants dismissal. 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 his suit).
Plaintiff's Status as a
1915(g) applies only to prisoners. See 28 U.S.C.
§ 1915(g) (“In no event shall a prisoner bring a
civil action . . .”); Harris v. Garner, 216
F.3d 970, 975-77 (discussing Congress' intent in using
the word “brings” to indicate that the
determining factor in whether the PLRA's restrictive
provision applies is whether the plaintiff is confined at the
time he files the suit). A prisoner is “any person
incarcerated or detained in any facility who is accused of,
convicted of, sentenced for, or adjudicate delinquent for,
violations of criminal law or the terms and conditions of
parole, probation, pretrial release, or diversionary
program.” 28 U.S.C. § 1915(h). Here, Plaintiff
concedes that he is detained at Keeton Corrections, and will
be released on July 12, 2019. (ECF No. 22 at 2). Further, a
review of Plaintiff's complaint shows that at the time of
filing the complaint, he was confined at FPC Camp Talladega.
(see ECF No. 1 at 9). In light of his release date,
Plaintiff seeks a stay in the proceeding until he is