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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

ANTHONY D. GARLAND,

D.O.C. # L42997,

Plaintiff,

vs. Case No. 4:09cv358-SPM/WCS

DAVID B. WHEELER, 

and PETER SAPAK,

Defendants.

 /

REPORT AND RECOMMENDATION

Plaintiff, proceeding pro se, filed a civil rights complaint on September 8, 2009,

against an assistant public defender and assistant state attorney. Doc. 1. I prepared an

order on September 11, 2009, granting Plaintiff's motion for leave to proceed in forma

pauperis. Docs. 3, 5. Plaintiff was ordered to submit an initial partial filing fee by

October 12, 2009. Doc. 5. That order should be vacated. 

Plaintiff responded to question D of the complaint form, as to whether he had

ever had any actions in federal court dismissed as frivolous, malicious, for failing to

state a claim, or prior to service, by answering, "I don't remember which case but I had
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Case No. 4:09cv358-SPM/WCS

one I think." Doc. 1, p. 6. That equivocal answer, along with familiarity of Plaintiff's

name, led to a search of court records. I discovered that on March 6, 2009, I entered a

report and recommendation in case 4:08cv580-RS/WCS directing that the case be

dismissed because Plaintiff should not have been granted in forma pauperis status. It

was discovered that Plaintiff had already accumulated at least three "strikes" under 28

U.S.C. § 1915(e) such that he was not entitled to in forma pauperis status. 

Plaintiff has once again, been mistakenly granted in forma pauperis status in this

case. Doc. 5. Plaintiff has attempted to deceive the Court by not disclosing all prior

dismissals under 28 U.S.C. § 1915 in answering Question D on the complaint form. 

Doc. 1, p. 6. Plaintiff was just recently reminded of the cases in which he received a

"strike" under § 1915 in the report and recommendation entered in March, 2009, in case

4:08cv580-RS/WCS. As listed there, Plaintiff has three prior prisoner actions dismissed

in the Southern District of Florida on the grounds that they were frivolous, malicious, or

failed to state a claim. Cases numbered 0:08cv1020 and 08cv61054 were dismissed as

frivolous under Heck v. Humphrey. Additionally, Plaintiff had case 08cv61052

dismissed for failure to state a claim. Plaintiff has now had a case in this Court

dismissed pursuant to 28 U.S.C. § 1915(g). Case 4:08cv580, docs. 11 and 17.

Considering that Plaintiff's motion seeking leave to proceed in forma pauperis,

doc. 3, should not have been granted in this case, it is now recommended that the

motion be denied and the erroneous order, doc. 5, be vacated. Plaintiff is not entitled to

in forma pauperis status and this case should be dismissed.
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Case No. 4:09cv358-SPM/WCS

The 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 the prisoner has, on 3 or more 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). 

Plaintiff's allegations against an assistant public defender and assistant state

attorney do not bring him within the "imminent danger" exception. Those persons are

not located with Plaintiff in prison. As Plaintiff has had at least three prior § 1915(e)

dismissals and is not under imminent danger of serious physical injury, this action

should now be dismissed. 

In light of the foregoing, it is respectfully RECOMMENDED that (1) the order

granting Plaintiff leave to proceed in forma pauperis, doc. 5, be VACATED; (2) Plaintiff's

motion seeking leave to proceed in forma pauperis, doc. 3, be DENIED, and this case

be DISMISSED because Plaintiff is not entitled to proceed in forma pauperis pursuant to

28 U.S.C. § 1915(g), and the Clerk of Court be directed to note on the docket that this

case was dismissed under 28 U.S.C. § 1915(g). 

IN CHAMBERS at Tallahassee, Florida, on October 2, 2009.

 s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE
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Case No. 4:09cv358-SPM/WCS

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 15 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 10 days

after being served with a copy thereof. Failure to file specific objections limits the

scope of review of proposed factual findings and recommendations.