Fleetwood et al v. Florida Bar Association et al

Filing 8

ORDER denying 3 Motion for Leave to Proceed in forma pauperis; adopting 6 Report and Recommendations. Certificate of Appealability: No Ruling. Case is CLOSED. Signed by Judge James I. Cohn on 4/10/2013. (ams)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 13-60446-CIV-COHN/WHITE
DR. CLIFFORD FLEETWOOD,
Plaintiff,
v.
FLORIDA BAR ASSOCIATION, et al.,
Defendants.
__________________________________/
ORDER ADOPTING REPORT OF MAGISTRATE JUDGE
THIS CAUSE is before the Court upon the Report Regarding Dismissal of
Successive Complaint 28 U.S.C. § 1915(g) [DE 6] (“Report”), filed by United States
Magistrate Judge Patrick A. White. The Court has considered the Report, Plaintiff’s
Objections [DE 7]1, the record in this case, and is otherwise fully advised in the
premises.
Judge White recommends dismissal because Plaintiff’s suit is successive and
barred by 28 U.S.C. § 1915(g). The undersigned agrees with Judge White. Title 28
U.S.C. § 1915(g) provides as follows:
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
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Plaintiff’s Objections are styled as a “Motion to File Objections, and Motion to
Correct the Caption, Motion to Stay Proceedings, and or Motion for a Final Order, and
Motion for a Copy of the Court Docket.” See DE 7. Plaintiff not only objects to the
Report, but also asks the Court to stay proceedings until he is released from prison.
Plaintiff does not specify his release date, and accordingly, this request will be denied.

imminent danger of serious physical injury.
28 U.S.C. § 1915(g). As Judge White points out, Plaintiff has already filed three suits
while incarcerated, each of which have been dismissed for failure to state a claim.
See DE 6 at 2. Further, Plaintiff has not demonstrated that he is under imminent
danger of serious physical injury. Accordingly, Plaintiff may not proceed in forma
pauperis in this action so long as he remains incarcerated.
Plaintiff objects to the Report for eleven reasons. First, he objects on the ground
that the Report states that the case arises under 28 U.S.C. § 1983, when in fact, he
claims, it was filed pursuant to 28 U.S.C. § 1331. This objection does not address the
viability of Plaintiff’s claims under § 1915(g), and will therefore be overruled. Second,
Plaintiff contends, without explanation, that “Magistrate [Judge] White has a
predisposed political bias against the Plaintiffs.” DE 7 at 2. Because Plaintiff gives no
further basis for his assertion, the Court finds this assertion to be meritless. Third, he
argues that “[t]he Prison Litigation Reform Act, 42 U.S.C. [§] 1997E(H) is
unconstitutional because the aforementioned case.” Id. There is no case previously
mentioned in the Objections, and accordingly this argument fails. Fourth, Plaintiff
contends that he is being illegally imprisoned. This objection fails because it does not
relate to this suit’s viability under § 1915(g). Plaintiff’s fifth and sixth objections, taken
together, assert that this action should be allowed to proceed because it is not
malicious or frivolous, and Plaintiff has a right to a trial by jury. These arguments
likewise fail because they do not address the Report’s finding that this action is barred
by § 1915(g).
In his seventh and eighth objections, Plaintiff states that the “three strikes rule” in
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§ 1915(g) is unconstitutional because Plaintiff could prove his indigency, and because
the provision blocks all access to the courts. However, as Judge White points out, the
Eleventh Circuit has determined that § 1915(g) does not violate the First Amendment
right of access to courts or the Fifth or Fourteenth Amendment rights to due process of
law. See DE 6 at 2-3 (citing Rivera v. Allin, 144 F.3d 719 (11th Cir. 1998)). Thus, these
objections are overruled. In Plaintiff’s ninth objection, he argues that the caption of this
case should read “Dr. Clifford G. Fleetwood, Attorney at Law, P.C.” As this request
does not relate to Judge White’s recommendation of dismissal, the request will be
denied. In the tenth objection, Plaintiff objects to “the Magistrates Report listing all of
the Plaintiffs as persons. They are not persons they are business entities that have
been damaged by the Defendants and their malicious actions.” DE 7 at 4. This
objection is likewise irrelevant to the issue of dismissal, and will be overruled. Finally, in
his eleventh objection, Plaintiff asserts that the claims filed in another lawsuit,
Fleetwood, et al. v. Sandia National Laboratories, Inc., et al., No. 07-60760-CIVHURLEY/HOPKINS (S.D. Fla. closed July 17, 2007), have merit and should be
addressed by the Court. Once again, this objection does not relate to Judge White’s
determination that this case be dismissed pursuant to § 1915(g). Accordingly, this
objection will be overruled, and the Report will be adopted. Thus, for the foregoing
reasons, it is hereby
ORDERED AND ADJUDGED as follows:
1.

Plaintiff’s Objections [DE 7] are OVERRULED, and all other relief
requested therein is DENIED.

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2.

The Report Regarding Dismissal of Successive Complaint 28 U.S.C.
§ 1915(g) [DE 6], filed by United States Magistrate Judge Patrick A. White
is ADOPTED.

3.

The Complaint [DE 1] is DISMISSED without prejudice. Plaintiff may
move to reopen the case upon payment of the filing fee of $350.00, within
ten days of this Order.

4.

All other pending motions are DENIED as moot, and the Clerk of Court is
directed to CLOSE this case.

DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, on this 10th day of April, 2013.

Copies provided to:
Clifford G. Fleetwood, pro se
Prisoner ID: 381200574
North Broward Detention Center
P.O. Box 407037
Fort Lauderdale, FL 33340

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