Bilal v. Jarvis et al
Filing
6
ORDER denying 2 Motion for leave to proceed in forma pauperis/affidavit of indigency; directing plaintiff to submit the $400 filing fee if he wishes to proceed by March 31, 2014; denying 3 motion to dismiss the filing injunction as overbroad. Signed by Judge John E. Steele on 3/11/2014. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JAMAL ALI BILAL,
Plaintiff,
v.
Case No: 2:14-cv-129-FtM-29DNF
FNU JARVIS, C.O., FNU GARZA,
C.O., GEO CARE, LLC, FNU
JAYNES, MS. WARD, and GLOBAL
EXPERTS IN OUTSOURCING,
Defendants.
ORDER
Plaintiff Jamal Ali Bilal (“Plaintiff”), a civil detainee at
the Florida Civil Commitment Center (“FCCC”) in Arcadia, Florida,1
1
The Florida legislature enacted the Sexually Violent
Predators Act, Fla. Stat. §§ 394.910-.913, by which a person
determined to be a sexually violent predator is required to be
housed in a secure facility “for control, care, and treatment until
such time as the person’s mental abnormality or personality
disorder has so changed that it is safe for the person to be at
large.” Fla. Stat. § 394.917(2). The Act was promulgated for the
dual purpose “of providing mental health treatment to sexually
violent
predators
and
protecting
the
public
from
these
individuals.”
Westerheide v. State, 831 So. 2d 93, 112 (Fla.
2002); Kansas v. Hendricks, 521 U.S. 346 (1997) (holding that the
Kansas Sexually Violent Predator Act did not establish criminal
proceedings, and involuntary confinement pursuant to the Act was
not punitive). Civil commitment under the Act involves several
steps. First, the Act requires a mental evaluation of any person
who has committed a sexually violent offense and is scheduled for
release from prison or involuntary confinement.
See generally
Fla. Stat. § 394.913.
The evaluation is conducted by a multidisciplinary team of mental health professionals who must
determine whether the individual meets the definition of a
“sexually violent predator.”
After the evaluation, the state
attorney may file a petition with the circuit court alleging that
initiated this action by filing a complaint and a motion for leave
to proceed in forma pauperis (Doc. 1; Doc. 2).
In the complaint,
Plaintiff raises Eighth, Fourteenth, and First Amendment claims
arising from his transport from the FCCC to his civil commitment
trial in Pensacola, Florida in September of 2013.
Plaintiff has
also filed a motion to dismiss a civil filing injunction originally
imposed upon him by the Northern District of Florida and recognized
by this Court (Doc. 3).2
Plaintiff initially raised these claims in Case No. 2:14cv-56-38CM, but the Court dismissed the action without prejudice
because of Plaintiff's failure to attach a copy of an injunction
from
the
United
States
District
Court,
Northern
District
of
Florida, restricting Plaintiff from proceeding in forma pauperis
in
civil
actions
absent
a
determination
by
the
Court
that
“Plaintiff has credibly alleged that he is in imminent danger of
the individual is a sexually violent predator subject to civil
commitment under the Act.
Id.
If the judge determines the
existence of probable cause that the individual is a sexually
violent predator, then he or she will order the individual to
remain in custody. Id. at § 394.915.
Thereafter, a jury trial,
or a bench trial if neither party requests a jury trial, will
commence. Id. If the jury finds the individual to be a sexually
violent predator by clear and convincing evidence, then the
individual will be committed to the custody of the Department of
Children and Family Services for “control, care, and treatment
until such time as the person’s mental abnormality or personality
disorder has so changed that it is safe for the person to be at
large.” Id. at § 394.917.
2
The injunction at issue was originally filed in N.D. Fla.
Case No. 3.99-cv-456-LAC-SMN.
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serious physical harm.” (“Filing Injunction”)(Case No. 2:14-cv56-38CM at Doc. 6).
Subsequent to the dismissal, Plaintiff re-
filed the instant action along with a copy of the Filing Injunction
(Doc. 1).
1.
Plaintiff has not credibly alleged imminent danger
so as to allow him to proceed without payment of a
filing fee
The Court takes judicial notice of the Filing Injunction filed
in the Northern District of Florida and concludes that Plaintiff
cannot proceed in the instant action without payment of the
appropriate filing fee.3
The instant complaint alleges a litany
of constitutional violations stemming from Plaintiff’s transport
by van from the FCCC in Arcadia, Florida, to Plaintiff’s civil
commitment trial in Pensacola in September of 2013 (Doc. 1).
Plaintiff alleges that the manacles used to restrain him
during transport rubbed on his skin; that the bag lunch provided
to him during the transport did not provide him with sufficient
calories
and
caused
him
botulism;
that
he
was
not
allowed
sufficient bathroom breaks during the transport; that one of the
transporting officers was downloading hundreds of pictures of
child
pornography
during
the
transport;
and
that
his
equal
protection rights were violated by the transport because federal
3
When the injunction was initially entered by the Northern
District in 1999, the filing fee was $150.00. Subsequently, the
fee has been raised to $400.00.
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prisoners are transported by airplane instead of transport van
(Doc. 1).
Incredibly, Plaintiff also asserts that the inhumane
treatment
he
received
during
the
transport
resulted
from
complaints he made after the transport (Doc. 1 at 4-10).
Plaintiff appears to allege that he is in imminent danger
because, if it becomes necessary to transport him to Pensacola in
the future, he would be subject to the same conditions.
Based
upon a review of Plaintiff’s complaint, the Court finds that this
assertion
is
speculative
and
does
not
Plaintiff is in “imminent” danger.
adequately
state
that
The Court concludes that
Plaintiff's allegations do not rise to the level of imminent danger
or serious physical harm.
Therefore, Plaintiff will not be
allowed to proceed in forma pauperis.
2.
The
Northern
District
of
Florida’s
filing
injunction reasonably restricts Plaintiff's in
forma pauperis filings
In his motion to dismiss the Northern District of Florida’s
Filing Injunction, Plaintiff argues that this Court’s wholesale
adoption
of
the
Filing
Injunction
was
based
“misapprehension” of the facts (Doc. 3 at 3).
upon
a
Specifically,
Petitioner argues that “at the time the Northern District of
Florida
[injunction]
was
issued,
it
was
aimed
at
preventing
Plaintiff's prolific litigation as a prisoner, not as a citizen.”
Id. (emphasis in original).
on
the
Filing
Injunction,
Plaintiff is mistaken.
the
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Northern
In the order
District
expressly
recognized that Plaintiff was “no longer a prisoner, but rather a
civil
detainee[.]”
(N.D.
Fla.
Case
No.
3.99-cv-456-LC-SMN).
Indeed, had Plaintiff been a prisoner, 28 U.S.C. § 1915(g) would
have precluded him from filing civil cases in forma pauperis absent
a showing of imminent danger, and a civil filing injunction would
have been unnecessary.
The Northern District also noted that, at
the time of the injunction, Plaintiff had filed fifty-three civil
rights cases in the Northern District, thirty of which had been
dismissed as frivolous or malicious. Id. at 2.
In
its
order
on
the
injunction,
the
Northern
District
recognized that the Eleventh Circuit has established that district
courts have considerable discretion in restricting an abusive
litigant’s access to the federal judiciary (N.D. Fla. Case No.
3.99-cv-456-LC-SMN at Doc. 3).
Noting that “‘a court has a
responsibility to prevent single litigants from unnecessarily
encroaching on the judicial machinery needed by others’ while
assuring their access to the court is not completely foreclosed[,]”
the Northern District determined that Plaintiff would no longer be
granted leave to proceed in forma pauperis unless it was determined
that he credibly alleged he was in imminent danger of serious
physical injury. Id. at 6 (citing Procup v. Strickland, 792 F.2d
1069, 1074 (11th Cir. 1986)).
This Court adopted the Northern
District’s order in Case No. 2:02-cv-421-JES-SPC.
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Petitioner argues that no restrictions should be imposed as
a result of his frivolous filings because not all of his filings
have been frivolous (Doc. 3 at 2).
successful
in
assisting
his
He notes that he has been
attorneys
criminal convictions (Doc. 3 at 2).
in
reversing
several
He also asserts that he has
“brainstormed” with other individuals to successfully file suits
in the federal courts. Id.
Petitioner's scattered successes in
the criminal arena do not excuse the dozens of frivolous and
malicious lawsuits he has filed in federal court.4
Circuit
has
recently
recognized
that
frivolous
The Eleventh
and
vexations
lawsuits threaten the availability of a well-functioning judiciary
to all litigants and that imposition of a filing fee acts to temper
the damage caused by abusive litigants:
As the Supreme Court has noted, filing fees in
theory discourage frivolous law suits and thus
help allocate judicial resources to more
meritorious cases. See In re McDonald, 489
U.S. 180, 184, 109 S. Ct. 993, 996, 103 L.Ed.2d
158 (1989). “But paupers filing pro se are not
subject to the financial considerations—
filing fees and attorney's fees—that deter
other
litigants
from
filing
frivolous
4
In 1999, the Northern District noted that Plaintiff had
filed fifty-three cases in the Northern District; thirty of which
had been dismissed as frivolous or malicious, five for failure to
state a claim, two on summary judgment, one as moot, eight for
failure to prosecute, and four were voluntarily dismissed. The
Northern District also noted that Plaintiff had, at that time,
filed twelve additional cases in the Middle District of Florida
(Case No. 3.99-cv-456-LC-SMN). A review of Pacer.gov indicates
that Plaintiff has filed at least 31 additional civil lawsuits in
the Middle District of Florida and 17 additional civil lawsuits in
the Northern District of Florida since the injunction was filed.
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petitions.” Id.; see also In re Sindram, 498
U.S. 177, 179, 111 S. Ct. 596, 598, 112 L.Ed.2d
599 (1991) (directing the clerk of the Court
not to accept further IFP extraordinary writ
petitions
from
the
petitioner).
Absent
monetary cost as a constraint, the sheer
volume of frivolous IFP suits threatens to
undermine the availability of the federal
courts to the public. To counter such threat
and to protect its jurisdiction, the district
courts are authorized by the All Writs Act, 28
U.S.C. § 1651(a), to restrict access to
vexatious and abusive litigants. Reimposing
financial considerations in the form of filing
fees on indigent litigants is one way the
courts can fulfill their “constitutional
obligation to protect their jurisdiction from
conduct which impairs their ability to carry
out
Article
III
functions.”
Procup
v.
Strickland, 792 F.2d 1069, 1073 (11th Cir.
1986) (en banc) (per curiam) (quoting In re:
Martin–Trigona, 737 F.2d 1254, 1261 (2d
Cir.1984)).
Miller v. Donald, 541 F.3d 1091, 1096 (11th Cir. 2008).
The Court
has reviewed the Filing Injunction and concludes that it reasonably
constrains Plaintiff to meritorious claims without completely
blocking his access to the courts.
Accordingly, Plaintiff's
motion to dismiss the Filing Injunction (Doc. 3) is denied.
ACCORDINGLY, it is hereby ORDERED:
1.
Plaintiff's motion to proceed in forma pauperis (Doc. 2)
is DENIED.
2.
Plaintiff shall submit the $400 filing fee on or before
March 31, 2014 if he wishes to proceed in this action.
If
Plaintiff wishes to deem his compliance with this Order timely
filed as of the date he delivers the filing fee to officials at
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the FCCC, the FCCC must affix a date stamp certifying the date the
filing fee was delivered for mailing or alternatively, Plaintiff
shall have an official at the FCCC certify the date the filing fee
was handed to officials for mailing.
Without a certified date
stamp, the Court will not deem the filing fee paid until received
by the Clerk of the Court.
3.
Plaintiff’s failure to submit the $400.00 filing fee on
or before March 31, 2014 will result in the dismissal of this
action without prejudice.
4.
Plaintiff's motion to dismiss the Filing Injunction as
overbroad (Doc. 3) is DENIED.
DONE and ORDERED in Fort Myers, Florida on this
of March, 2014.
SA: OrlP-4 3/11/14
Copies: Jamal Ali Bilal
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11th
day
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