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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

ALBERT JEFFERSON,

D.O.C. # 076635,

Plaintiff,

vs. Case No. 4:11cv48-WS/WCS

JAY FLOYD, DANICA POLLOCK, 

and AMBER VARGAS,

Defendants.

 /

REPORT AND RECOMMENDATION

Plaintiff Albert Jefferson is an inmate incarcerated within the Florida Department

of Corrections, currently housed at Wakulla Correctional Institution. Doc. 1, p. 2. 

Plaintiff has submitted a § 1983 civil rights case against three Defendants, all of whom

are officers employed at Wakulla C.I.. Plaintiff states on the complaint form that he

cannot recall the prior cases he has initiated that relate to the fact or manner of his

incarceration or the conditions of his confinement. Doc. 1, p. 4. Plaintiff states that he

has previously had no cases dismissed as frivolous, malicious, failing to state a claim,

or prior to service. Id. Plaintiff lists only one prior federal case, 5:03cv268. Id. All of

those statements, which were signed under penalty of perjury, Id., at 7, are incorrect.
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Plaintiff has had more than three cases dismissed for reasons which count as

"strikes" under 28 U.S.C. § 1915. In this court, case 5:03cv269 was dismissed because

Plaintiff failed to acknowledge having filed prior cases. The cases Plaintiff failed to

disclose having filed were: 4:03cv349, 5:03cv268, and 3:04cv5. Plaintiff was

sanctioned for abuse of the judicial process by the dismissal of that case, 5:03cv269, on

February 5, 2004, and was advised then of the necessity to make complete and honest

disclosures. Docs. 9, 11, and 12. Plaintiff also had case 4:03cv349 dismissed for

failure to state a claim on August 2, 2005. Docs. 33, 36 and 37. That counts as

Plaintiff's second strike. Plaintiff had a third dismissal, case 3:04cv5, in this court which

counts as a third strike under § 1915(g). That case was also dismissed as malicious

and as abusive for Plaintiff's failure to disclose his prior cases. Docs. 4, 7, and 8. 

More recently, Plaintiff initiated another case in this court: 3:06cv148. It was

dismissed here because Plaintiff failed to comply with a court order and pay the

assessed initial partial filing fee. Docs. 19, 21. However, Plaintiff appealed that

dismissal. On March 7, 2007, the Eleventh Circuit concluded that Plaintiff's appeal was

frivolous. Doc. 41. Thus, Plaintiff has at least four "strikes." 

This case makes the fifth. Although it has been several years, Plaintiff should be

well aware that he must disclose all prior cases, especially in light of the two cases

which were dismissed for that same reason. Additionally, as Plaintiff has more than

three cases dismissed for reasons under § 1915(e)(2)(b), Plaintiff is not entitled to in

forma pauperis status in this Court. The in forma pauperis motion, doc. 2, should be

denied.

Case No. 4:11cv48-WS/WCS
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This case does not meet the exception for granting in forma pauperis status. 

Plaintiff is complaining about being retaliated against because he filed grievances. 

Plaintiff alleges he was written a false and retaliatory disciplinary report. Because

Plaintiff does not allege being in danger of serious physical injury, Plaintiff cannot be

granted in forma pauperis status. Should Plaintiff desire to re-file this case, and

disclose all prior cases (including those filed in the Middle District of Florida), Plaintiff

must pay the filing fee at the time of case initiation. 28 U.S.C. § 1915(g).

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

complaint, doc. 1, be DISMISSED as an abuse of the judicial process for Plaintiff's

failure to disclose all prior cases, and Plaintiff's motion for leave to proceed in forma

pauperis, doc. 2, should be DENIED pursuant to 28 U.S.C. § 1915(g) because he has

had more than three cases dismissed as "strikes" under 28 U.S.C. § 1915(e), and it is

further RECOMMENDED that the order adopting this report and recommendation direct

the Clerk of Court to note on the docket that this cause was dismissed as malicious

pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and as barred by § 1915(g).

IN CHAMBERS at Tallahassee, Florida, on February 9, 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 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.

Case No. 4:11cv48-WS/WCS