Shoemaker v. Smith et al

Filing 17

ORDER overruling plaintiff's Objections (Doc. 16) and ADOPTING the 12 REPORT AND RECOMMENDATIONS. It is ordered that this action be dismissed without prejudice pursuant to 28 U.S.C. § 1915(g).. Signed by Chief Judge William H. Steele on 8/7/2014. Copy mailed to plaintiff. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JEFFERY ALLEN SHOEMAKER,
Plaintiff,
v.
GLOVER W. SMITH, et al.,
Defendants.

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CIVIL ACTION 14-0265-WS-M

ORDER
This matter comes before the Court on the Report and Recommendation (doc. 12) entered
by the Magistrate Judge, and plaintiff’s Objections (doc. 16) to same.
I.

Background.
Plaintiff, Jeffery Allen Shoemaker, is a Florida state prisoner who brought this § 1983

action complaining of, inter alia, alleged constitutional violations in connection with an incident
on June 21, 2013, in which he was tased by law enforcement officers in Atmore, Alabama.
Shoemaker is proceeding pro se and has requested in forma pauperis status.
On July 14, 2014, Magistrate Judge Milling entered a Report and Recommendation (doc.
12) recommending that this action be dismissed pursuant to the three-strikes provisions of 28
U.S.C. § 1915(g). In particular, the Report and Recommendation documented the following
prior actions or appeals by Shoemaker that were dismissed as frivolous: (i) Shoemaker v. Elliott,
Civil Action 2:04-00021-JES-DNF (M.D. Fla. July 29, 2004) (dismissal as frivolous under §
1915); (ii) Shoemaker v. Elliott, No. 04-14385-I (11th Cir. June 13, 2005) (dismissal of appeal as
frivolous under § 1915); and (iii) Shoemaker v. Moore, No. 99-12321-H (11th Cir. Mar. 9, 2000)
(dismissal of appeal as frivolous under § 1915). Based on these three prior dismissals, the
Magistrate Judge found that § 1915(g) applies to Shoemaker’s present Complaint. The Report
and Recommendation specifically examined the “imminent danger of serious physical injury”
exception to the three-strikes rule, and deemed it inapplicable. On that basis, the Report and

Recommendation concluded that this action should be dismissed without prejudice pursuant to
28 U.S.C. § 1915(g). Shoemaker now objects to that Report and Recommendation.
II.

Analysis.
In relevant part, § 1915(g) provides that “[i]n no event shall a prisoner bring a civil action

… under this section if the prisoner has, 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.” 28 U.S.C. § 1915(g). “Congress added § 1915(g) to curtail abusive prisoner
litigation.” Lloyd v. Benton, 686 F.3d 1225, 1227 (11th Cir. 2012) (citation and internal quotation
marks omitted). As noted, the Report and Recommendation made a specific finding that
Shoemaker’s present lawsuit is subject to the restrictions of § 1915(g) because he has previously
incurred “three strikes” within the meaning of that section.
In his Objections, Shoemaker disputes the Magistrate Judge’s determination that he has
received three strikes in prior litigation, and posits that § 1915(g) is inapplicable because he has
accrued only one strike. This Court reviews the challenged portions of the Report and
Recommendation de novo. See 28 U.S.C. § 636(b)(1) (“A judge of the court shall make a de
novo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.”); Rule 72(b)(3), Fed.R.Civ.P. (“The district judge
must determine de novo any part of the magistrate judge’s disposition that has been properly
objected to.”).
Upon de novo review, the Court readily concludes that the Report and
Recommendation’s findings as to the § 1915(g) issue are correct. Court records confirm that in
late 1999, Shoemaker appealed to the Eleventh Circuit from the dismissal of a pro se prisoner
lawsuit he had filed in the U.S. District Court for the Middle District of Florida, styled Jeffrey
Shoemaker v. Officer D. Delong, et al., Case No. 2:98-cv-00491-JES-DNF.1 On March 9, 2000,
the Eleventh Circuit dismissed Shoemaker’s appeal as follows: “[A]ppellant’s motion for leave
to proceed on appeal is DENIED and the appeal is DISMISSED because it is frivolous.”
1

The district judge dismissed this lawsuit for the stated reason that “Plaintiff
Shoemaker has not provided sufficient information for service on Defendants” and had failed to
provide the U.S. Marshal’s Service with necessary addresses for service of process.

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Shoemaker v. Moore, No. 99-12321-H (11th Cir. Mar. 9, 2000). Under any reasonable reading of
the Eleventh Circuit’s ruling, Shoemaker’s appeal in that case “was dismissed on the grounds
that it is frivolous, malicious, or fails to state a claim upon which relief may be granted,” and
therefore falls well within the scope of § 1915(g). This was strike one.2
Court records further establish that in 2004, Shoemaker, while still a pro se prisoner, filed
another lawsuit against a U.S. Supreme Court law clerk named Sandy Elliott, alleging that she
had violated his constitutional rights in processing his petition for writ of certiorari. This action
was styled Jeffery Allen Shoemaker v. Sandy Elliott, and was filed in the Middle District of
Florida as Case No. 2:04-cv-00021-JES-DNF. On July 29, 2004, the District Court entered an
Order of Dismissal with Prejudice in that case, dismissing the lawsuit under § 1915(e) as lacking
arguable merit in either law or fact. That Order concluded that “Plaintiff’s action is ‘completely
without a legal basis’ as to defendant law clerk, and is due to be dismissed.” Shoemaker v.
Elliott, Case No. 2:04-cv-00021-JES-DNF (M.D. Fla. July 29, 2004) (emphasis added). The
plain text of this ruling establishes that Shoemaker’s case “was dismissed on the grounds that it
is frivolous, malicious, or fails to state a claim upon which relief may be granted,” placing it
firmly within the purview of § 1915(g). This was strike two.3
Shoemaker appealed from the adverse ruling in the Elliott matter. The Eleventh Circuit
dismissed his appeal and made an express finding of frivolity, as follows: “[A]ppellant’s motion
for leave to proceed on appeal is DENIED and his appeal is DISMISSED because it is
2

In contesting whether this dismissal constitutes a strike, Shoemaker points to
docket text prepared by the Middle District of Florida Clerk’s Office and stating, “USCA
ORDER that appellants’ [sic] motion for leave to proceed on appeal is denied and the appeal is
dismissed.” (Doc. 16, at 12.) It is true that this docket text does not use the term “frivolous.” It
is also true, however, that the Eleventh Circuit’s ruling specifically made a frivolity finding.
That written order, rather than a summary prepared by the district court clerk’s office, controls
for purposes of a § 1915(g) assessment.
3

Once again, in disputing whether this dismissal qualifies as a strike, Shoemaker
endeavors to shift the focus from the terms of the dismissal order itself, to the docket text, which
merely says, “ORDER dismissing case with prejudice as barred by absolute immunity.” (Doc.
16, at 14.) The absence of magic words or talismanic phrases in the docket text does not
undercut or erase the district judge’s specific finding that dismissal was warranted because
Shoemaker’s lawsuit was “completely without a legal basis,” which is for all practical purposes a
frivolity determination.

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frivolous.” Shoemaker v. Elliott, No. 04-14385-I (11th Cir. June 13, 2005). This language leaves
no ambiguity that Shoemaker’s appeal “was dismissed on the grounds that it is frivolous,
malicious, or fails to state a claim upon which relief may be granted,” such that it qualifies as a
strike under § 1915(g). This was strike three.4
For the foregoing reasons, the Court makes a de novo determination that Shoemaker had
in fact accrued three strikes before filing the instant lawsuit as a Florida state prisoner. Under the
clear terms of § 1915(g), then, he was barred from proceeding under § 1915 in this case “unless
the prisoner is under imminent danger of serious physical injury.” § 1915(g). The Magistrate
Judge reasonably concluded that the “imminent danger” exception did not apply here, and
Shoemaker has not challenged that aspect of the Report and Recommendation. Because §
1915(g) applies, Shoemaker was obligated to prepay the entire filing fee at the outset of this civil
action. See, e.g., Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (“after three meritless
suits, a prisoner must pay the full filing fee at the time he initiates suit”); Childs v. Miller, 713
F.3d 1262, 1265 (10th Cir. 2013) (“[T]he ‘three strikes’ provision … requires so-called ‘frequent
filer’ prisoners to prepay the entire filing fee before federal courts may consider their civil
actions and appeals.”) (citation omitted). He did not do so; therefore, this action is properly
dismissed without prejudice, just as the Report and Recommendation recommended.
III.

Conclusion.
For all of the foregoing reasons, Shoemaker’s Objections (doc. 16) are overruled in their

entirety. After due and proper consideration of all portions of this file deemed relevant to the
issues raised, and a de novo determination of those portions of the Report and Recommendation
to which objection was made, the Report and Recommendation (doc. 12) made by the Magistrate
Judge pursuant to 28 U.S.C. § 636(b)(1)(B) is adopted as the opinion of this Court. It is
ordered that this action be and hereby is dismissed without prejudice pursuant to 28 U.S.C. §
1915(g).
4

The Report and Recommendation correctly concluded that Shoemaker accrued
two strikes in the Elliott matter, inasmuch as “[a] frivolous complaint … followed by a frivolous
appeal leads to two ‘strikes’ under 28 U.S.C. § 1915(g).” Hains v. Washington, 131 F.3d 1248,
1250 (7th Cir. 1997); see also Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996); Hood v.
Vessel, 2013 WL 6502835, *1 (N.D. Fla. Dec. 11, 2013) (“the frivolous appeal of a lower court’s
dismissal as frivolous counts twice”).

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DONE and ORDERED this 7th day of August, 2014.

s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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