Green v. Kozlowski et al
Filing
45
OPINION AND ORDER granting 38 Motion to dismiss; dismissing Complaint without prejudice pursuant to § 1915(g); vacating 7 Order granting leave to proceed in forma pauperis. The Clerk shall notify the proper officials with the Flori da Department of Corrections to remove the filing fee lien from plaintiff's prisoner account stemming from this case number, terminate all pending motions, enter judgment accordingly, and close the case. Signed by Judge John E. Steele on 12/21/2011. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ERIC D. GREEN,
Plaintiff,
vs.
Case No.
2:10-cv-654-FtM-29DNF
J. KOZLOWSKI, L. BROWN, STEVEN HALL,
ANDRO JOHNSON, CLAUDE HENDERSON,
sued in their individual capacities,
Defendants.
___________________________________
OPINION AND ORDER
This matter comes before the Court upon review of Defendants’
Motion to Dismiss Under Three Strikes Provision of the Prison
Litigation Reform Act or Alternative, For Failure to Truthfully
Disclose Prior Lawsuits (Doc. #38, Motion).
response in opposition (Doc. #43, Response).
Plaintiff filed a
Plaintiff also filed
an Amended Complaint (Doc. #41) on September 9, 2011.
This matter
is ripe for review.
I.
Defendants move for dismissal under 28 U.S.C. § 1915(g), or in
the
alternative
based
on
Plaintiff’s
failure
to
“truthfully”
disclose all of his prior litigation on his Complaint. See Motion.
While Defendants seek dismissal due to Plaintiff’s three strike
status, Defendants also point out that Plaintiff listed all of his
previous
cases
Complaint,
but
that
he
failed
filed
to
in
the
district
mention
two
cases
he
courts
on
his
filed
in
the
appellate courts.
Motion at 4, ¶ 6.
The Court will first address
Defendants’ § 1915(g) argument.
II.
Defendants
submit
that
Plaintiff
qualifies
as
a
“three
striker” and point to the following six cases in support of their
position: Appellate Case No. 09-10341-F; Appellate Case No. 0811320; and District Court Case Nos. 3:01-cv-1255; 3:02-cv-20; 3:06cv-842; and 3:07-cv-39.
F.
See Motion at 5-6, n. 3; see also Exhs. A-
Defendants aver that the appellate court’s order dismissing
Plaintiff’s appeal as frivolous in case 09-10341-F should count as
a strike.
Court
Motion at 4 (citing Exh. A).
should
also
count
the
order
Defendants submit that the
of
dismissal
prosecution in appellate case 08-11320 as a strike.
n. 3.
for
lack
of
Motion at 4;
Defendants submit that the Court should count the order of
dismissal for failure to comply with the court’s order in 3:02-cv20 as a strike.
Id. at 6, n. 3.
Defendants state that the Court
should count the order of dismissal based on Plaintiff’s failure to
truthfully list under penalty of perjury all prior suits in case
numbers 3:01-cv-1255.
Id.
The Defendants argue that the orders
granting summary judgment in cases 3:06-cv-842 and 3:07-cv-39
should count as strikes, because Plaintiff had attempted to bring
these two new actions, which were already included as part of the
settlements in his previous actions at case numbers 3:02-cv-70 and
3:04-cv-1060.
Motion at 6, n. 3.
-2-
In Response, Plaintiff contends that he did not abuse the
judicial process in case numbers 3:02-cv-20 and 08-11320-DD because
he did not receive a copy of the courts’ orders.
Response at 3-4.
With regard to appellate case no 09-10341-F, Plaintiff points out
that the appellate court reconsidered and vacated its order.
at 6.
Id.
With regard to case numbers 3:06-cv-842 and 3:07-cv-39,
Plaintiff states that the Assistant Attorney General who had
negotiated the settlement of these cases with him “had manipulated,
deceived, and misled him into signing the release of all claims.”
Id. at 6.
Last, addressing Defendants’ contentions that Plaintiff
did not disclose all of his prior cases in his instant Complaint,
Plaintiff submits that their argument is moot based on Plaintiff’s
Amended Complaint.
Id. at 3, 7.
Therefore, Plaintiff asks that
the Court deny the Defendants’ Motion.
III.
The Prison Litigation Reform Act (hereinafter PLRA), which
amended 28 U.S.C. § 1915, contains the following subsection:
(g)
In no event shall a prisoner bring a
civil action or appeal a judgment in a civil
action or proceeding 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, unless the
prisoner is under imminent danger of serious
physical injury.
28 U.S.C. § 1915(g).
-3-
Section 1915, known as the “Three Strikes Rule” only permits a
prisoner to file “three meritless suits at the reduced rate.”
Dupree
v.
Palmer,
284
F.3d
1234,
1236
(11th
Cir.
2002).
Additionally, the Court may consider prisoner actions dismissed
before, as well as after, the enactment of the PLRA.
Allin, 144 F.3d 719, 730 (11th Cir. 1998).
that
count
dismissals
as
strikes
under
for
failure
to
§
state
1915(g)
a
Rivera v.
The types of dismissals
include,
claim
under
inter
§
alia,
1915A
and
§1915(e)(2)(b), for failure to exhaust administrative remedies, for
abuse of the judicial process, for refusal to comply with court
orders, and for repeated assertion of claims previously raised.
See Buckle v. Daniels, Case No. 10-80300-CIV-HURLEY, 2010 WL
1838073 (S.D. Fla. April 7, 2010 (reviewing types of dismissals
that precedent recognizes count as strikes under § 1915(g)).
IV.
Upon review of the prisoner civil rights cases and appeals
thereof that Plaintiff has filed, the Court finds that Plaintiff
has at least three qualifying strikes under § 1915(g).
See 3:01-
cv-1255 (Doc. #4, dismissal for lying under penalty of perjury),
3:01-cv-1298
(Doc.
#6,
dismissal
for
lying
under
penalty
of
perjury), and 3:02-cv-201 (Doc. #11, abuse of judicial process for
1
Plaintiff contends that this Court should not count his
dismissal in case number 3:02-cv-20 as a strike because he did not
receive the court’s orders. See Response. A review of the docket
shows that on January 25, 2002, the court ordered Plaintiff to
submit documentation to verify his completion of the grievance
(continued...)
-4-
not complying
with
court
order
after
warning).
Contrary
to
Defendant’s argument, however, the Court will not count as a strike
the appellate court’s order in case number 09-10341, which found
Plaintiff’s appeal was frivolous, because the appellate court later
granted Plaintiff’s motion for reconsideration and vacated that
order.
See Eleventh Circuit Case 09-103410-F Order, dated August
31, 2009.
that
an
Also, contrary to Defendant’s position, the Court finds
order
dismissing
a
case
for
lack
of
prosecution
is
distinguishable from an order dismissing a case for abuse of the
judicial process stemming from the plaintiff’s failure to comply
with a court order.
Defendant does not point to any case law to
support such a finding.
Thus, the Court will not count the
appellate order in case number 08-11820 as a strike.
Circuit Case 08-11820.
See Eleventh
Nevertheless, because the Court has found
Plaintiff has three qualifying strikes under § 1915(g), the Court
will not address whether the remaining cases count as strikes.
1
(...continued)
procedures. On February 22, 2002, and April 22, 2002, Plaintiff
filed a motion for an extension of time to produce such
documentation.
Doc. #6, #9.
Both times the court granted
Plaintiff’s Motion and extended the deadline in orders dated
February 28, 2002 and May 14, 2002. The Court warned Plaintiff
that failure to comply with the Court’s orders would result in the
dismissal of the case without further notice. See Docs. #7, #10.
On July 22, 2002, when Plaintiff failed to comply with the Orders
and submit the inspector general’s report, the Court dismissed the
action based on Plaintiff’s failure to comply. Doc. #11. Thus,
although the docket shows that Plaintiff did not receive the May
14, 2002 order granting Plaintiff additional time, Plaintiff was
well aware of his obligation to submit the inspector general’s
report in this case. Moreover, it is Plaintiff’s responsibility to
keep the Court apprised of his mailing address at all times.
-5-
ACCORDINGLY, it is hereby
ORDERED:
1.
Defendants’
Motion
to
Dismiss
Under
Three
Strikes
Provision of the Prison Litigation Reform Act or Alternative, For
Failure to Truthfully Disclose Prior Lawsuits (Doc. #38) is GRANTED
for the
reasons
herein.
The
Complaint is
dismissed
without
prejudice pursuant to § 1915(g).
2. Plaintiff may initiate this action by filing the Complaint
and paying the $350.00 filing fee at the time he initiates the
action.
3. The Court’s Order granting Plaintiff’s motion for leave to
proceed in forma pauperis (Doc. #7) is VACATED.
4.
The Clerk of Court shall notify the proper officials with
the Florida Department of Corrections to remove the filing fee lien
from Plaintiff’s prisoner account stemming from this case number.
5.
The Clerk of Court shall terminate any pending motions,
enter judgment accordingly, and close this case.
DONE AND ORDERED at Fort Myers, Florida, on this
of December, 2011.
SA: alj
Copies: All Parties of Record
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21st
day
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