Rivera v. Riley et al (INMATE2)

Filing 3

ORDERED that the 2 motion for leave to proceed in forma pauperis filed by Vincent F. Rivera is denied. It is the Recommendation of the Magistrate Judge that this case be dismissed without prejudice for plaintiff's failure to pay the full filing fee upon the initiation of this case. Objections to R&R due by 5/26/2006. Signed by Judge Charles S. Coody on 5/8/06. (sl, )

Rivera v. Riley et al (INMATE2)

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Case 2:06-cv-00394-WKW-CSC

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IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION __________________________________ V IN C E N T F. RIVERA, #518 548 P l a in tif f , v. BOB RILEY, GOVERNOR, et al. * * * * 2:06-CV-394-WKW (WO)

D e f e n d a n ts . * __________________________________ ORDER AND RECOMMENDATION OF THE MAGISTRATE JUDGE O n May 2, 2006, Vincent Rivera, an inmate incarcerated in the Florida State Prison lo c a te d in Raiford, Florida, filed an application for leave to proceed in forma pauperis. See 2 8 U.S.C. § 1915(a). Pursuant to the directives of 28 U.S.C. § 1915(g), a prisoner is not a llo w e d to bring a civil action or proceed on appeal in forma pauperis if he "has, on 3 or m o re 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, m a licio u s, or fails to state a claim upon which relief may be granted, unless the prisoner is u n d e r imminent danger of serious physical injury."1

In Rivera v. Allin, 144 F.3d 719, 731 (11th Cir. 1998), the Court determined that the "three strikes" provision of 28 U.S.C. § 1915(g), which requires frequent filer prisoner indigents to prepay the entire filing fee before federal courts may consider their cases and appeals, "does not violate the First Amendment right to access the courts; the separation of judicial and legislative powers; the Fifth Amendment right to due process of law; or the Fourteenth Amendment right to equal protection, as incorporated through the Fifth Amendment."

1

Dockets.Justia.com

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DISCUSSION Court records establish that Plaintiff, while incarcerated, has on more than three o c c a s io n s had 42 U.S.C. § 1983 cases dismissed under 28 U.S.C. § 1915 as frivolous, m aliciou s, for failure to state a claim and/or for asserting claims against defendants who were im m u n e from suit. The cases on which the court relies in finding a violation of § 1915(g) inclu d e, but are not limited to: (1) Rivera v. Tornin, et al., Civil Action No. 2:93-CV-170-JES (M .D . Fla. 1993); (2) Rivera . Arocho, Civil Action No. 3:96-CV-275-HES (M.D. Fla. 1996); (3) Rivera v. Parker, et al., 3:96-CV-325-WTH (M.D. Fla. 1996); (4) Rivera v. Almojera, et a l., Civil Action No. 3:97-CV-569-WTH (M.D. Fla. 1997). Although the preceding list is n o t exhaustive of the cases summarily dismissed by the United States District Court for the M id d le District of Florida or other federal courts of the United States, it is representative of th o s e cases filed by Plaintiff which were dismissed in accordance with the directives of 28 U .S .C . § 1915.2 In the instant complaint, Plaintiff's claims before this court do not allege nor in any w a y indicate that he "is under imminent danger of serious physical injury." 28 U.S.C. § 1 9 1 5 (g). Based on the foregoing, the court concludes that Plaintiff's motion for leave to p ro c e ed in forma pauperis is due to be denied and this case dismissed without prejudice for P la in tif f 's failure to pay the requisite filing fee ($350.00) upon the initiation of this cause of

2 As the court in Rivera v. Bush, et al., Civil Action No. 3:05-CV-444-J-32HTS (M.D. Fla. 2005) noted, Rivera has a long history of frivolous and abusive filings and his ability to file pleadings with that court have now been limited.

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action. Dupree v. Palmer, 284 F.3d 1234, 1236 (11 th Cir. 2002) ) ("[T]he proper procedure is for the district court to dismiss the complaint without prejudice when it denies the prisoner le a v e to proceed in forma pauperis pursuant to the provisions of § 1915(g)" because the p ris o n e r "must pay the filing fee at the time he initiates the suit.") (emphasis in original). CONCLUSION I n light of the foregoing, it is ORDERED that the motion for leave to proceed in forma pauperis filed by Plaintiff o n May 2, 2006 (Doc. No. 2) is DENIED. It is the RECOMMENDATION of the Magistrate Judge that this case be DISMISSED w ith o u t prejudice for Plaintiff's failure to pay the full filing fee upon the initiation of this case. It is further ORDERED that the parties shall file any objections to this Recommendation on or b e f o r e May 22, 2006. Any objections filed must specifically identify the findings in the M a g is tra te Judge's Recommendation to which the party is objecting. Frivolous, conclusive o r general objections will not be considered by the District Court. The parties are advised th a t this Recommendation is not a final order of the court and, therefore, it is not appealable. F a i lu r e to file written objections to the proposed findings and advisements in the M a g is tra te Judge's Recommendation shall bar the party from a de novo determination by the D is tric t Court of issues covered in the Recommendation and shall bar the party from a tta c k in g on appeal factual findings in the Recommendation accepted or adopted by the

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District Court except upon grounds of plain error or manifest injustice.

Nettles v.

W a in w r ig h t, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 3 3 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, en b a n c ), adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. D o n e this 8 th day of May, 2006.

/s/Charles S. Coody CHARLES S. COODY C H IE F UNITED STATES MAGISTRATE JUDGE