Jones v. Lee et al

Filing 3

ORDER DISMISSING CASE. Closing Case. Signed by Judge Darrin P. Gayles See attached document for full details. (hs01)

Case 1:21-cv-22093-DPG Document 3 Entered on FLSD Docket 07/19/2021 Page 1 of 4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 1:21-cv-22093-GAYLES
JESSIE WIMSY JONES,
Plaintiff,
vs.
OFFICER N. LEE, et al.,
Defendants.
________________________________/
ORDER DISMISSING COMPLAINT WITH PREJUDICE
THIS CAUSE is before the Court upon Plaintiff Jessie Wimsy Jones’ (“Plaintiff”) pro se
Complaint pursuant to 42 U.S.C. § 1983 [ECF No. 1]. Plaintiff is a prisoner incarcerated at the
Martin Correctional Institution, 1 and he has failed to pay the filing fee or file a motion for leave to
proceed in forma pauperis (“IFP”). For the reasons stated below, the Complaint is subject to
dismissal pursuant to the “three-strikes” rule of 28 U.S.C. § 1915(g) and, alternatively, because it
is frivolous pursuant to § 1915A.
I. DISMISSAL UNDER THE “THREE STRIKES” RULE OF 28 U.S.C. § 1915(g)
Title 28 U.S.C. § 1915(g) states:
In no event shall a prisoner bring a civil action … 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.
Although Plaintiff states in his Complaint that he is incarcerated at the South Florida Reception Center, a records
check with the Florida Department of Corrections reveals that Plaintiff is currently housed at the Martin Correctional
Institution. See http://www.dc.state.fl.us/OffenderSearch/Search.aspx.
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Section 1915(g) “requires frequent filer prisoners to prepay the entire filing fee before federal
courts may consider their lawsuits or appeals.” Rivera v. Allin, 144 F.3d 719, 723 (11th Cir. 1998)
abrogated on other grounds by Jones v. Bock, 549 U.S. 199, 214-15 (2007). The proper procedure
for a district court faced with a prisoner who is barred by the three strikes provision is to dismiss
the complaint without prejudice. See Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002). A
three-striker cannot pay the filing fee after initiating suit as a retroactive cure. See id. (stating that
“a prisoner must pay the full filing fee at the time he initiates suit” (emphasis in original)).
A review of Plaintiff’s litigation history reveals that the last civil rights complaint he filed
in this district was dismissed under the three-strikes rule. See Jones v. S.F.R.C., et al., No. 21–cv–
20421–ALTONAGA, Order of Dismissal, ECF No. 4 (S.D. Fla. Apr. 22, 2021). 2 Because Plaintiff
is a three-striker, his Complaint must be dismissed unless he can demonstrate that he qualifies
under the “imminent danger of serious physical injury” exception to § 1915(g). To qualify under
the imminent danger exception, the Eleventh Circuit requires a pleading of “specific allegations of
present imminent danger that may result in serious physical harm.” Brown v. Johnson, 387 F.3d
1344, 1349 (11th Cir. 2004). Here, Plaintiff’s Complaint is rambling and incoherent and does not
allege any imminent danger.
II. DISMISSAL AS FRIVOLOUS UNDER 28 U.S.C. § 1915A
Although Plaintiff’s Complaint is subject to dismissal without prejudice under the threestrikes rule, the Court may instead “choose to dismiss a struck-out prisoner’s case on the merits
with prejudice, even if the prisoner failed to pay the filing fee.” White v. Lemma, 947 F.3d 1373,

In that that order, the court stated: “The Court takes judicial notice of the following “strikes” pursuant to Federal
Rule of Evidence 201: Jones v. Fla. Dep’t of Corr., No. 19-21700-Civ, 2019 WL 6324563 (S.D. Fla. Nov. 26, 2019)
(dismissing section 1983 complaint for failure to state a claim and failure to comply with court orders); Jones v. Silva,
No. 19-21133-Civ, 2019 WL 11690488 (S.D. Fla. May 10, 2019) (dismissing section 1983 complaint for failure to
state a claim); Jones v. Phillipe, No. 08-20552-Civ [ECF No. 53] (S.D. Fla. July 7, 2009) (dismissing section 1983
complaint without prejudice pursuant to 42 U.S.C. section 1997e(a) for failure to exhaust administrative remedies).
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1379 (11th Cir. 2020) (“though a court must procedurally dismiss without prejudice the claim of
a prisoner who has struck out under the three-strikes provision and failed to pay the filing fee, the
court may also consider the merits to dismiss the case with prejudice instead.”). Here, the Court
chooses in its discretion to dismiss Plaintiff’s Complaint with prejudice under 28 U.S.C. § 1915A
because it is frivolous.
Plaintiff has not paid the filing fee nor has he filed a motion for leave to proceed in forma
pauperis. Nonetheless, the Court must screen the Complaint under § 1915A because Plaintiff is a
prisoner who has filed suit against government employees. See Martin v. Scott, 156 F.3d 578, 580
(5th Cir. 1998) (“The plain language of [§ 1915A], however, indicates that it applies to any suit
by a prisoner against certain government officials or entities regardless of whether that prisoner is
or is not proceeding IFP.”). Section 1915A(b) requires a court to dismiss a prisoner complaint that
is: (1) “frivolous, malicious, or fails to state a claim upon which relief may be granted”; or (2)
“seeks monetary relief from a defendant who is immune from such relief.” A complaint is
“frivolous” where the factual allegations are “clearly baseless.” Neitzke v. Williams, 490 U.S. 319,
327 (1989). Examples of “clearly baseless” factual allegations include those “describing fantastic
or delusional scenarios.” Id. at 328; Denton v. Hernandez, 504 U.S. 25, 32–33 (1992) (citing
Neitzke, 490 U.S. at 325–28) (stating that a court may dismiss a claim as frivolous if the facts
alleged are clearly baseless, fanciful, fantastic, or delusional). A court may dismiss a claim with
prejudice and without leave to amend where the claim is frivolous and any amendment would be
futile. Gary v. U.S. Gov’t, 540 F. App'x 916, 917 (11th Cir. 2013).
Here, Plaintiff’s factual allegations “rise to the level of the irrational or wholly incredible.”
Denton, 504 U.S. at 33. His Complaint contains numerous incomprehensible allegations, such as
“I am a billionair (sic) at this South Florida Reception Center Inst. In I had notified this
Government Donald J. Trump, staff member about my motion for a post-conviction relief …”
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[ECF No. 1 at 3]. See United States v. True, No. 6:02–CV–951–ORL19JGG, 2003 WL 21254889,
at *1 (M.D. Fla. 2003) (affirming summary denial of defendants' motion to dismiss because it was
written in incomprehensible gibberish) (citing Crain v. C.I.R., 737 F.2d 1417, 1418 (5th Cir. 1984)
(affirming dismissal of tax court petition on basis that petition was a “hodgepodge of unsupported
assertions, irrelevant platitudes, and legalistic gibberish,” and stating that Court should not have
been put to the trouble of “adjudicating” the meritless appeal)). As such, the Complaint is subject
to dismissal as frivolous under § 1915A.
Accordingly, it is ORDERED AND ADJUDGED that Plaintiff’s Complaint [ECF No. 1]
is DISMISSED WITH PREJUDICE and this case CLOSED.
DONE AND ORDERED in Chambers at Miami, Florida, this Monday, July 19, 2021.

________________________________
DARRIN P. GAYLES
UNITED STATES DISTRICT JUDGE
cc:

Jessie W. Jones
M24331
Martin Correctional Institution
1150 S.W. Allapattah Road
Indiantown, Florida 34956-4397
PRO SE

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