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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

JOHN BAILEY,

Plaintiff,

vs. Case No. 4:11cv304-SPM/WCS

EDWIN G. BUSS, et al.,

Defendants.

 /

ORDER, REPORT AND RECOMMENDATION

Plaintiff, an inmate proceeding pro se, filed a civil rights complaint under 42

U.S.C. § 1983. Doc. 1. Plaintiff also filed a motion seeking leave to proceed in forma

pauperis, doc. 2. The motion appeared to be appropriate and was granted by separate

order. Doc. 4. However, upon review of Plaintiff's complaint it now appears that leave

to proceed should have been denied and the clerk will be directed to vacate that order. 

Plaintiff has not answered the question on the complaint form concerning his

prior cases. Doc. 1. Plaintiff states that he has been a "frequent filer" and his

"meritorious issues have never been fairly ruled on . . . ." Id., at 4. It is Plaintiff's

responsibility to honestly disclose all prior cases. Plaintiff acknowledges having had

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other actions dismissed as frivolous, malicious, failing to state a claim, or prior to

service, but Plaintiff fails to disclose that case or cases, or even indicate how many

cases were so dismissed. Plaintiff may not avoid his obligation to keep track of his

litigation history by simply asserting he has lost documents between transfers. Plaintiff

also may not avoid dismissal of his case by failing to honestly disclose his prior cases. 

It is clear that Plaintiff has three "strikes" and may not proceed in forma pauperis. 

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 has had three or more prior prisoner actions dismissed on the grounds

that they were frivolous, malicious, or failed to state a claim. Case 9:06cv80203 was

dismissed in the Southern District of Florida on the grounds that it failed to state a claim. 

Case 8:09cv672 was dismissed in the Middle District of Florida because Plaintiff's

claims were "wholly insubstantial and frivolous." Doc. 2, of that case. The order of

dismissal noted that Plaintiff had "previously filed a similar civil rights complaint seeking

the same form of injunctive relief." Id., at citing 8:06cv790. The dismissal order stated

that the earlier case had also been dismissed because it was frivolous, and the

dismissal was affirmed by the Eleventh Circuit Court of Appeals. Id. Therefore, Plaintiff

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has accumulated more than three strikes and his motion for in forma pauperis status in

this case must be denied.

The instant complaint does not alleges that Plaintiff is in danger of serious

physical injury and, thus, his allegations do not bring him within the "imminent danger"

exception. Because Plaintiff has had at least three prior dismissals and is not under

imminent danger of serious physical injury, his request to proceed in forma pauperis

should be denied and this action should be dismissed. The dismissal should be without

prejudice to him making the same allegations in a complaint for which he pays the full

$350.00 filing fee at the time of filing the complaint.

Accordingly, it is ORDERED that the Clerk shall vacate the order entered June

28, 2011, doc. 4, which granted leave to proceed in forma pauperis.

In light of the foregoing, it is also respectfully RECOMMENDED that Plaintiff’s

motion to proceed in forma pauperis, doc. 2, be DENIED pursuant to 28 U.S.C. §

1915(g), and Plaintiff’s complaint, doc. 1, be DISMISSED without prejudice, and 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 June 29, 2011.

 S/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

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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. 4:11cv304-SPM/WCS

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