Harris v. Soto et al

Filing 5

ORDER OF DISMISSAL denying 2 Motion for Leave to Proceed in forma pauperis; dismissing case without prejudice. The Clerk shall enter judgment accordingly, send Plaintiff a copy of the pre-printed 28 U.S.C. § 2254 application, and close the case. Signed by Judge John E. Steele on 10/13/2015. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
GREGORY HARRIS,
Petitioner,
v.

Case No: 2:15-cv-617-FtM-99CM

BERTILA SOTO, Chief Judge,
ROSA RODRIGUEZ, Judge,
THOMAS REBULL, Judge,
ANTONIO MARIN, Judge,
MAGALIE RODRIGUEZ, DAVID
GLANTZ, GRISKA MENA
RODRIGUEZ, STEVEN
DEMANOVICH, NATALIE SNYDER,
KELLY FOSTER, JELANI DAVIS,
JOHNNY BROWDY, FREDERICKA
ROBERTS, CHEALY MILLER,
Chief of Police, NIKEGA
HILL, and JEFFERY FULKNER,
Respondents.
ORDER OF DISMISSAL
This matter comes before the Court upon a “Writ to Distress
Bonds Writ of Conspiracy to Kidnappe [sic] with Fraudulent Intent
and Breach of the Peace” and an application to proceed in forma
pauperis filed by Gregory Harris on October 5, 2015 (Doc. 1; Doc.
2).

Plaintiff's complaint concerns the defendants’ actions during

the criminal proceedings that led to his current incarceration,
and each defendant is either a judge, assistant attorney general,
assistant state attorney, public defender, or police officer (Doc.
2).

Petitioner appears to assert that these defendants conspired

to unconstitutionally convict and sentence him. Id.

Plaintiff is

currently

incarcerated

at

Franklin

Correctional

Institution,

serving sentences for child abuse and grand theft. Id.
Because Plaintiff has filed three or more suits that were
dismissed on the grounds that they were frivolous, malicious, or
failed to state a claim upon which relief may be granted, Plaintiff's
motion to proceed in forma pauperis is denied, and this case is
dismissed without prejudice pursuant to 28 U.S.C. § 1915(g).
I.

Legal Standards
Section 1915(g) of Title 28 limits a prisoner’s ability to bring

a civil action in forma pauperis under certain circumstances:

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). Thus, if a prisoner has had three or more cases
dismissed for one of the recited reasons, he cannot proceed in forma
pauperis and must pay the filing fee in full at the time the lawsuit
is initiated.
II.

Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002).

Analysis
The Court takes judicial notice of filings previously brought

by Plaintiff in the Southern District of Florida that were dismissed
on the grounds that they were frivolous, malicious, or failed to
state a claim upon which relief may be granted: (1) 1:11-cv-22828-

- 2 -

MGC; (2) 1:12-cv-23944-JEM; (3) 1:13-cv-22314-RNS; and (4) 1:13-cv22512-KMW.

In addition, the Court has found three cases from the

Southern District of Florida, and one case from the Northern District
of Florida which were dismissed pursuant to 28 U.S.C. § 1915(g). See
SDFL Case Nos. 1:13-cv-24417-KMM, 1:13-cv-14422-KMW, 1:13-cv-24422KMW and NDFL Case No. 4:15-cv-366-RH-CAS.
Plaintiff does not allege that he is under imminent danger of
serious physical injury, and none of the defendants named in his
pleading appear to operate from Franklin Correctional Institution.
Based upon the prior dismissals and because Plaintiff is not currently
under imminent danger of serious physical injury, his application to
proceed in forma pauperis is denied and this action is dismissed
without prejudice. Plaintiff may initiate a new civil rights action
by filing a new civil rights complaint form and paying the full filing
fee at the time he files the action.
Finally, to the extent Plaintiff asserts that he is in custody
in violation of the Constitution, he must seek relief through a
petition for writ of habeas corpus filed pursuant to 28 U.S.C. §
2254. 1

ACCORDINGLY, it is hereby ORDERED:
1.

Plaintiff's application to proceed in forma pauperis

(Doc. 2) is DENIED.
2.

This case is DISMISSED without prejudice.

1

The Court takes no position as to the potential merits of
such a petition.
- 3 -

3.

The Clerk of the Court is directed to terminate all

pending motions, enter judgment accordingly, and close this case.
4.

The Clerk is also directed to send Plaintiff a copy of

the pre-printed 28 U.S.C. § 2254 application.
DONE and ORDERED in Fort Myers, Florida on this
of October, 2015.

SA: OrlP-4
Copies: Gregory Harris
Encl: 28 U.S.C. § 2254 petition

- 4 -

13th

day