Jimenez v. Allweiss et al

Filing 5

ORDER dismissing without prejudice 1 --complaint; directing the clerk to CLOSE the case. Signed by Judge Steven D. Merryday on 4/25/2018. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DAVID JIMENEZ
Plaintiff,
v.

CASE NO. 8:18-cv-928-T-23AEP

ROBIN ALLWEISS, et al.,
Defendants.
/

ORDER
Jimenez filed a civil rights complaint and 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,
732 (11th Cir.), cert. dismissed, 524 U.S. 978 (1998), abrogated on other grounds by Jones
v. Bock, 549 U.S. 199 (2007). Jimenez’s actions that qualify as a “strike” under

Section 1915(g) include Jimenez v. Bernie McCabe, 8:11-cv-1749-T-23AEP; Jimenez v.
Bernie McCabe, 8:13-cv-439-T-23AEP; Jimenez v. Bob Dillinger, 8:13-cv-605-T-17AEP;
Jimenez v. Michael P. Jimenez, 8:13-cv-2346-T-23MAP; and most recently, Jimenez v.
Robin Lynn Allweiss, 8:18-cv-683-T-23AAS, which was dismissed based on the “threestrikes” provision in Section 1915(g).
Because he has had at least three dismissals that qualify under
Section 1915(g) and because he is not under imminent danger of serious physical
injury, Jimenez 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.”). This preclusion against proceeding in forma pauperis is without
regard to the merits of the present civil rights complaint. Jimenez can initiate a new
civil rights action by both filing a civil rights complaint and paying the $400.00 filing
fee.
Accordingly, the complaint (Doc. 1) 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 April 25, 2018.

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