Smith v. OIC Brown et al

Filing 2

ORDER dismissing case Signed by Judge Roy B. Dalton, Jr. on 7/26/2017. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
RICHARD JEROME SMITH,
Plaintiff,
v.

Case No. 6:17-cv-1358-Orl-37DCI

OIC BROWN, et al.,
Defendants.
_____________________________________
ORDER
This matter is before the Court for a review of the file. Plaintiff filed a complaint
alleging that Defendants interfered with his ability to pursue one or more civil actions.
(Doc. 1.) Plaintiff failed to pay the required filing fee, however.
I.

PROCEDURAL BACKGROUND

The Court takes judicial notice of three prior actions initiated by Plaintiff in this
Court, while he was incarcerated, that were dismissed on the ground that they were
either frivolous or failed to state a claim upon which relief may be granted: (1) 6:16-cv692-Orl-18TBS; (2) 6:16-cv-772-Orl-37DAB; and (3) 6:17-cv-1072-Orl-18KRS.
II.

LEGAL STANDARD

28 U.S.C. § 1915(g) limits a prisoner litigant’s ability to pursue a civil action
without prepayment of fees and costs:
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
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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.
A prisoner litigant therefore cannot proceed without paying the requisite filing fee (a) if
he previously initiated three or more actions in federal court, (b) while incarcerated,
(c) that were dismissed for one of the identified reasons, (d) unless he is under imminent
danger of serious physical injury. See Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002)
(per curiam) (“’After the third meritless suit, the prisoner must pay the full filing fee at the
time he initiates suit.’”) (quoting Vanderberg v. Donaldson, 259 F.3d 1321, 1324 (11th Cir.
2001)). A court confronted with a civil action implicating § 1915(g) should dismiss the
action without prejudice – thus preserving the prisoner’s ability to pursue the same
underlying claims, albeit after initiating a new action and paying the requisite filing fee.
See Wright v. Polk County, 556 Fed. App’x 873, 874 (11th Cir. 2014).
III.

ANALYSIS

Plaintiff previously initiated three civil actions in this Court, while he was
incarcerated, that were dismissed on the ground that they were frivolous or failed to state
a claim upon which relief may be granted. Plaintiff’s present action does not allege that
he is under imminent danger of serious physical injury. As a result, Plaintiff was required
to pay the full filing fee at the time he initiated the present action. He failed to do so and
this action must be dismissed without prejudice. Plaintiff can initiate a new civil action
by filing a new complaint but he must, at the time of filing, pay the full filing fee.

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IV.

CONCLUSION

Accordingly, it is ORDERED and ADJUDGED as follows:
1.

This case is DISMISSED without prejudice.

2.

The clerk is directed to close this case.

DONE and ORDERED in Orlando, Florida on July 26th, 2017.

Copies to:
OrlP-5 7/26
Richard Jerome Smith

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