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.

Wilson v. Ally Financial Inc.

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

July 9, 2019

FREDDIE WILSON, Plaintiff,
v.
ALLY FINANCIAL INC., Defendant.

          REPORT AND RECOMMENDATION

          MICHAEL J. FRANK, UNITED STATES MAGISTRATE JUDGE

         Pending 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).[1]

         I. Background

         Plaintiff 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.

         II. Standard

         The 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.”).

         In 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).

         This 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.”).

         Failure 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).

         III. Discussion

         A. Plaintiff's Status as a “Prisoner”

         Section 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 released. ...


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.