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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

RAY JAMES,

Plaintiff,

vs. Case No.: 4:11cv162-RH/WCS

WALTER McNEIL, et al., 

Defendants.

_________________________/

REPORT AND RECOMMENDATION

Plaintiff, an inmate proceeding pro se, filed a civil rights complaint, doc. 1, under

42 U.S.C. § 1983, a motion requesting the appointment of counsel, doc. 3, and a motion

seeking leave to proceed in forma pauperis, doc. 2. 

A prisoner is entitled to in forma pauperis status only if he has demonstrated the

inability to pay the filing fee, 28 U.S.C. § 19159a)(1), and has not, "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. § 191(g). 

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Plaintiff has shown an inability to pay, and he alleges that he has never had any

case dismissed "as frivolous, malicious, failing to state a claim, or prior to service." Doc.

1, p. 6. That assertion is not true. Rather than admit the basis for several of his case

dismissals, Plaintiff wrote "unknown" and then struck through that word. Doc. 1, pp. 17,

18. Plaintiff also states on the bottom of his twenty-page listing of cases that he is

"unsure of missing case information, and any other prior cases he may have filed." 

Doc. 1, p. 26. After twenty pages of case listings, it is nearly unfathomable that Plaintiff

failed to acknowledge several cases, but he did.

Plaintiff failed to list having filed case number 8:04cv488 in the Middle District of

Florida. That case was initiated on March 16, 2004, while Plaintiff was an inmate in the

Hillsborough County Jail. See doc. 4 of that case. It was dismissed on April 6, 2004,

"pursuant to 28 U.S.C. § 1915A for failure to state a claim for which relief may be

granted." Id. Plaintiff also failed to list having initiated case number 8:04cv487, which

was dismissed prior to service because Plaintiff failed to sign his complaint.1

Plaintiff also had case number 3:06cv1120 dismissed on May 22, 2009, in the

Middle District of Florida for lack of subject matter jurisdiction as the United States had

sovereign immunity. Doc. 39, case 3:06cv1120. Plaintiff was an inmate incarcerated at

Florida State Prison at the time. Because the case was found to be without legal merit,

it "meets the criteria of the criteria of Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827,

104 L.Ed.2d 338 (1989), for a frivolous action, i.e., one based on an 'indisputably

meritless legal theory' or lacking an 'arguable basis in law.' Id. at 327, 328, quoted in

Tate v. Alabama, 2010 WL 3086316, 1 (S.D.Ala., July 10, 2010). Such a dismissal

 1 Plaintiff did list filing case 8:04cv489, filed at the same time as the other two cases.

Case No. 4:11cv162-RH/WCS

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should count as a "strike" under 28 U.S.C. § 1915(g), but it need not do so because

Plaintiff has two other dismissals which count as strikes. See Tate v. Bivins, 2008 WL

2705388, 1 (S.D.Ala., July 10, 2008).

Judicial notice is taken that Plaintiff initiated a case which was transferred to the

Pensacola Division of the Northern District of Florida, and proceeded as case number

3:06cv25. At that time, Plaintiff was incarcerated at Union Correctional Institution and

was a prisoner under 28 U.S.C. § 1915(h). That case was dismissed as malicious for

Plaintiff's abuse of the judicial process on Jun 1, 2006. Doc. 25 of case number

3:06cv25. Plaintiff then filed a notice of appeal, and the Eleventh Circuit dismissed the

case as frivolous on December 29, 2006. Doc. 47 of that case. That also counts as a

"strike." Thus, Plaintiff has three dismissals under 29 U.S.C. § 1915(e)(2) which count

as "strikes" under § 1915(g) and which preclude granting Plaintiff's in forma pauperis

motion. 

Moreover, the case should be dismissed for Plaintiff's failure to honestly disclose

this important information from his litigation history. Although Plaintiff has initiated a

large number of cases in both the state and federal courts, his familiarity with the courts

certainly disposes him to the knowledge that those dismissals should have been

reported honestly in answering Question D on the complaint form. 

This case does not allege being in imminent danger of serious physical injury. 

Therefore, Plaintiff's in forma pauperis motion, doc. 2, should be denied and this civil

rights action should be dismissed under 28 U.S.C. § 1915(g).

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In light of the foregoing, it is respectfully RECOMMENDED that Plaintiff's in forma

pauperis motion, doc. 2, be DENIED, and this case be DISMISSED as barred by 28

U.S.C. § 1915(g), and that the order adopting this report and recommendation direct the

Clerk of Court to note on the docket that this cause was dismissed pursuant to 28

U.S.C. § 1915(g).

IN CHAMBERS at Tallahassee, Florida, on May 3, 2011.

 S/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

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

recommendations within 14 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 14 days

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

scope of review of proposed factual findings and recommendations.

Case No. 4:11cv162-RH/WCS

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