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Casey v. Trump

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

July 9, 2019

BRIAN M. CASEY, Plaintiff,
v.
DONALD TRUMP, U.S. PRESIDENT; DIRECTOR OF DEPARTMENT OF JUSTICE ADMINISTRATIVE PROCEDURES; and DIRECTOR OF F.B.I. ADMINISTRATIVE PROCEDURES; Defendants.

          REPORT AND RECOMMENDATION

          HOPE THAI CANNON UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, a prisoner proceeding pro se, filed an amended complaint (ECF Doc. 7) asserting claims under 42 U.S.C. § 1983. The matter is before the Court on that complaint, as well as Plaintiff's second motion to proceed in forma pauperis (ECF Doc. 8). Upon review of Plaintiff's litigation history, the Court has discovered Plaintiff is a “three-striker;” this action therefore should be dismissed without prejudice pursuant to 28 U.S.C. § 1915(g).

         According to 28 U.S.C. § 1915(g), a provision of the in forma pauperis statute,

[i]n 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 no longer entitled to proceed in forma pauperis must pay the filing fee at the time he initiates his lawsuit, and his failure to do so warrants dismissal of his case without prejudice. 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 (3) meritless suits, a prisoner must pay the full filing fee at the time he initiates suit). The only exception is if the prisoner alleges he is “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g); Brown v. Johnson, 387 F.3d 1344 (11th Cir. 2004).

         Plaintiff is subject to the three-strikes bar of § 1915(g), having had six (6) prior civil actions dismissed on the grounds they were frivolous, malicious, failed to state a claim or pursuant to § 1915(g). The Court takes judicial notice of the following cases: Casey v. Crews, No. 3:13cv92-RV-CJK (N.D. Fla.) (dismissed March 11, 2013, as malicious for Plaintiff's abuse of the judicial process in failing to disclose full litigation history); Casey v. Crews, et al., No. 3:13cv461-LC-CJK (N.D. Fla.) (dismissed October 22, 2013, as malicious for Plaintiff's abuse of the judicial process in failing to disclose full litigation history); Casey v. GEO Corporation, et al., No. 4:14cv151-MW-CAS (N.D. Fla.) (dismissed April 7, 2014, pursuant to 28 U.S.C. § 1915(g)); Casey v. Crews, et al., No. 5:14cv190-WS-GRJ (N.D. Fla.) (dismissed September 25, 2014, pursuant to 28 U.S.C. § 1915(g)); Casey v. Corizon Health Services, et al., No. 5:14cv275-RS-EMT (N.D. Fla.) (dismissed December 2, 2014, pursuant to 28 U.S.C. § 1915(g)); Casey v. Bondi, et al., No. 4:17cv160-MW-CAS (N.D. Fla.) (dismissed May 16, 2017, pursuant to 28 U.S.C. § 1915(g)). The undersigned has confirmed Plaintiff in the instant case is the same as the plaintiff in the cases cited above because he has the same inmate number, 139647.

         Accordingly, Plaintiff 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 makes no such allegations. Because Plaintiff did not pay the filing fee at the time he initiated this action, and because it plainly appears he is not entitled to proceed in forma pauperis, this case should be dismissed under 28 U.S.C. § 1915(g).

         Furthermore, prior to filing this case, Plaintiff was repeatedly advised by this Court that he was subject to the “three strikes” rule and thus cannot proceed in forma pauperis. See Casey v. Bondi, et al., No. 4:17cv160-MW-CAS (N.D. Fla.) (stating “[j]udicial notice is taken . . . that Plaintiff has previously been denied leave to proceed in forma pauperis based on the fact that Plaintiff has more than three “strikes” under 28 U.S.C. § 1915(g)”). The complaint form to be used by prisoners filing a civil rights complaint in this district requires prisoners to identify prior lawsuits they have filed. The purpose of that requirement is to determine whether the prisoner is a three-striker. Although Plaintiff stated in his complaint that “I don't have a record of the cases because prison officials lost all my legal property, ” he should have known he could not proceed in forma pauperis and further should have known, based on the prior dismissals, that it is his obligation to disclose his litigation history. Hence, not only should Plaintiff's case be dismissed under § 1915(g), but the undersigned also finds that Plaintiff's suit was maliciously filed.

         Accordingly, it is respectfully RECOMMENDED:

1. That Plaintiff's second motion to proceed in forma pauperis (ECF Doc. 8) be DENIED.
2. That the remaining pending motions (ECF Docs. 4, 5) be DENIED as moot.
3. That this action be DISMISSED WITHOUT PREJUDICE under 28 U.S.C. § 1915(g).
4. That the clerk be directed to close the file.

         NOTICE ...


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