Niebla v. Florida Department of Corrections

Filing 2

ORDER dismissing the action without prejudice; directing the Clerk to CLOSE the case. Signed by Judge Steven D. Merryday on 11/17/2014. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JORGE L. NIEBLA,
Plaintiff,
v.

CASE NO. 8:14-cv-2833-T-23MAP

FLORIDA DEPARTMENT OF
CORRECTIONS,
Defendant.
/
ORDER
Niebla submits a letter (Doc. 1), which is construed as an attempt to file a civil
rights complaint, but he neither pays the required filing fee nor moves for leave to
proceed in forma pauperis. As a consequence, this action is reviewed as if Niebla
moves for leave to proceed in forma pauperis. The Prison Litigation Reform Act
(“PLRA”) amends 28 U.S.C. § 1915 by adding 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.

“[F]ederal courts in this circuit may properly count as strikes lawsuits or
appeals dismissed as frivolous, malicious or failing to state a claim upon which relief

may be granted,” including actions dismissed before the PLRA. Rivera v. Allin, 144
F.3d 719, 730 (11th Cir.), cert. dismissed, 524 U.S. 978 (1998), abrogated on other
grounds by Jones v. Bock, 549 U.S. 199 (2007). Niebla’s earlier cases, dismissed as
either frivolous, malicious, or for the failure to state a claim upon which relief may be
granted, include 8:12-cv-1682-T-30EAJ, 8:13-cv-298-T-33EAJ and 8:13-cv-1605-T17EAJ. Additionally, 8:14-cv-2331-T-36EAJ, 8:14-cv-2402-T-33AEP, and 8:14-cv2483-T-35TBM were dismissed based on the “three-strikes” provision in Section
1915(g).
In the present action Niebla complains that the inmates in the Hardee
Correctional Institution are treated inhumanely and subjected to both hatred and
cruel and unusual punishment. The only example that Niebla offers of the
unconstitutional conduct is that inmates “are not allowed to put our arms around our
mother when taking photo in the visiting area.”
Because he has had three or more prior dismissals that qualify under
Section 1915(g) and he is not “under imminent danger of serious physical injury,”
Niebla is not entitled to proceed in forma pauperis. See Dupree v. Palmer, 284 F.3d
1234, 1236 (11th Cir. 2002) (“The purpose of the PLRA is to curtail abusive prisoner
litigation.”). Niebla speculates that he “might be subjected to violent hatred, abuse,
set up, false disciplinary report, chemical agents, threats, harassment, and

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retaliation.” His speculation fails to show that he is “under imminent danger of
serious physical injury” as required under Section 1915(g).
Niebla’s preclusion from proceeding in forma pauperis is without regard to the
merits of his present allegations. Niebla may initiate a new civil rights case by filing a
civil rights complaint and paying the $400.00 filing fee.
Accordingly, the letter (Doc. 1) is construed as a civil rights complaint, which
is DISMISSED without prejudice to the filing of a new complaint, in a new action,
with a new case number, upon the payment of the $400.00 filing fee. The clerk must
close this case.
ORDERED in Tampa, Florida, on November 17, 2014.

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