HINSON v. FLORIDA BAR ASSOCIATION

Filing 8

REPORT AND RECOMMENDATION re 1 Complaint filed by ROBERT LEE HINSON, JR : It is recommended Vacating order granting IFP and Dismissing case under 28 U.S.C 19115(g). R&R flag set. Signed by MAGISTRATE JUDGE ALLAN KORNBLUM on 5/22/09. Internal deadline for referral to district judge if objections are not filed earlier: 6/19/2009. (bkp)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA GAINESVILLE DIVISION

ROBERT LEE HINSON, JR Plaintiff, vs. FLORIDA BAR ASSOCIATION, et al., Defendants. / REPORT AND RECOMMENDATION Plaintiff, an inmate incarcerated within the Florida Department of Corrections, submitted a civil rights complaint, (doc. 1), and was granted leave to proceed in forma pauperis. (Doc. 4). Plaintiff then moved to supplement his complaint and attach all his previous cases. (Doc. 5). The motion to supplement is GRANTED, and because he is on the court's three strikes list, it is recommended that the previous order granting him leave to proceed be VACATED and this cause DISMISSED. The Prison Litigation Reform Act of 1995 (PLRA), provides that a prisoner may not bring a civil action in forma pauperis under 28 U.S.C. § 1915: . . . if the prisoner has, on 3 or more occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United CASE NO. 1:09cv117-MP/AK

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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). Plaintiff has had at least three prior prisoner actions dismissed within this District alone on the grounds that they were frivolous, malicious, or failed to state a claim. The dismissed cases include: case 3:99cv385-RV (dismissed as malicious); 3:99cv473-LAC (dismissed for failure to state a claim), and 3:08cv439-MCR (dismissed as frivolous). The instant complaint does not bring him within the "imminent danger" exception. See doc. 1. Because Plaintiff has had at least three prior dismissals and is not under imminent danger of serious physical injury, he is not entitled to proceed in forma pauperis. Furthermore, because Plaintiff did not pay the filing fee at the time he submitted this civil rights action, this case must be dismissed. The Eleventh Circuit Court of Appeals has clarified that the proper procedure in such a situation is not to give the inmate time in which to pay the fee, rather dismissal is required if a "three striker" does not pay the filing fee at the time he submits the complaint. Dupree v. Palmer, 284 F.3d 1234 (11th Cir. 2002). Thus, this case must be dismissed under 28 U.S.C. § 1915(g).

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In light of the foregoing, it is respectfully RECOMMENDED that the Order granting leave to proceed (doc. 4) be VACATED, and this case be DISMISSED under 28 U.S.C. § 1915(g). IN CHAMBERS at Gainesville, Florida, this 22nd day of May, 2009.

s/ A. KORNBLUM ALLAN KORNBLUM UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES A party may file specific, written objections to the proposed findings and recommendations within 15 days after being served with a copy of this report and recommendation. A party may respond to another party's objections within 10 days after being served with a copy thereof. Failure to file specific objections limits the scope of review of proposed factual findings and recommendations.

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