CASEY v. CENTURION OF FLORIDA LLC et al

Filing 18

ORDER OF DISMISSAL. Plaintiff's second amended complaint and this action are hereby DISMISSED pursuant to 28 U.S.C. § 1915(g) and without prejudice to Plaintiff's initiating a new cause of action accompanied by the $402.00 filing fee. The clerk shall enter judgment stating: Plaintiff's claims are dismissed without prejudice. Plaintiff's motion (ECF No. 15 ) for leave to proceed in forma pauperis is DENIED. The clerk shall close the case. Signed by SENIOR JUDGE WILLIAM STAFFORD on 05/09/2022. (toy)

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

BRIAN M. CASEY,
Plaintiff,
v.

4:21cv495–WS/MJF

CENTURION OF FLORIDA, LLC,
et al.,
Defendants.

ORDER OF DISMISSAL
Before the court is the magistrate judge's report and recommendation (ECF
No. 16) docketed March 25, 2022. The magistrate judge recommends that the
plaintiff's case be dismissed for maliciousness, pursuant to 28 U.S.C. §
1915A(b)(1), based on Plaintiff's abuse of the judicial process in failing to disclose
completely and honestly his prior litigation history. The plaintiff has filed
objections (ECF No. 17) to the magistrate judge’s report and recommendation.
The magistrate judge determined that Plaintiff failed to disclose in his
second amended complaint (ECF No. 14) two cases filed in the Southern District
of Florida in 2017, Casey v. Dep’t of Corr., No. 2:17cv14073–RLR, and Casey v.

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Jones, No. 1:17cv21798–KMW. What Plaintiff did disclose in his second amended
complaint was no less than thirty (30) cases filed in various federal courts, a
number of which he identified as having been dismissed as a “strike.” He added:
I cannot provide any further information because non-active records
are not storable in the FDOC. I have been transferred many times and
the records have been lost during transport from prison to prison
through no fault of my own. If the records are deficient in any way, it
is not meant for deceit or abuse of the courts with dishonesty.
ECF No. 14, p.17.
In his objections, Plaintiff explains that, on February 27, 2022, three weeks
before he filed his second amended complaint on March 21, he wrote to the Clerk
of Court in the Southern District of Florida requesting a list of his prior case filings
“so that [he could] apply for waiver of filing fees.” ECF No. 17, p. 4. The Clerk did
not send the requested information to Plaintiff but, instead, responded that
Plaintiff’s letter was not accepted for filing because it did not cite a case number.
Plaintiff objects to the magistrate judge’s finding of maliciousness, asserting that
he did not intend to deceive the court and did his best to comply with the form’s
disclosure requirement.
On this record, the undersigned declines to dismiss for maliciousness
pursuant to 28 U.S.C. § 1915A(b)(1). Dismissal is nonetheless required under the
three strikes provision of 28 U.S.C. § 1915(g). That provision prohibits a prisoner

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from bringing a civil action “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.” § 1915(g). Plaintiff
does not dispute that he is a “three striker.” While he alleges that he is in imminent
danger of serious physical injury,1 his allegations are insufficient to trigger the
“imminent danger” exception to dismissal under § 1915(g).
As did the magistrate judge, the undersigned finds that Plaintiff’s second
amended complaint must be dismissed without prejudice, albeit pursuant to the
three-strikes provision of § 1915(g) rather than the maliciousness provision of §
1915A(b)(1). Accordingly, it is ORDERED:
1. Plaintiff’s second amended complaint and this action are hereby
DISMISSED pursuant to 28 U.S.C. § 1915(g) and without prejudice to Plaintiff’s
initiating a new cause of action accompanied by the $402.00 filing fee.

1

Plaintiff alleges that he is in imminent danger because he suffers from
eczema-related open sores that make him susceptible to MRSA blood infections
that may lead to death and because he has a skin cancer that “has not been tested
for malignancy to determine whether metastizing [sic] has occurred leading to
incurable skin disability that causes death.” ECF No. 14, p. 5. These allegations are
vague and conclusory and do not show that, at the time he filed his second
amended complaint, he was in “imminent danger of serious physical injury.”

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2. The clerk shall enter judgment stating: Plaintiff’s claims are dismissed
without prejudice.
3. Plaintiff’s motion (ECF No. 15) for leave to proceed in forma pauperis is
DENIED.
4. The clerk shall close the case.
DONE AND ORDERED this

9th

day of

May

, 2022.

s/ William Stafford
WILLIAM STAFFORD
SENIOR UNITED STATES DISTRICT JUDGE