Rivera v. Douglas

Filing 3

REPORT AND RECOMMENDATIONS recommending that the 1 MOTION for Leave to Proceed in forma pauperis filed by Vincent F. Rivera be denied and that this case be dismissed without prejudice. Objections to R&R due by 9/11/2006. Signed by Judge Jerome J. Niedermeier on 8/25/2006. (jlh)

Rivera v. Douglas

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UNITED STATES DISTRICT COURT F O R THE D I S T R I C T OF VERMONT V i n c e n t F. Rivera, Plaintiff, v. J a m e s H. Douglas, P a t r i c k Leahy, and Vermont D e p a r t m e n t of Corrections, Defendants. : : : : : : : : :

F i l e No. 1:06-CV-165

M A G I S T R A T E JUDGE'S REPORT AND RECOMMENDATION ( P a p e r 1) P l a i n t i f f Vincent F. Rivera, a Florida inmate p r o c e e d i n g pro se, has filed a motion to proceed in forma p a u p e r i s . (Paper 1). In his proposed complaint, Rivera

s e e k s to bring claims against the defendants for their a l l e g e d participation in "an established prison i n d u s t r i a l cartel operating state-to-state." Because

R i v e r a has violated the "three strikes rule" by filing p r e v i o u s frivolous claims in United States federal c o u r t s , I recommend that his motion be DENIED, and that t h i s case be DISMISSED without prejudice. The Prison Litigation Reform Act, 28 U.S.C. § 1 9 1 5 ( g ) ("PLRA"), states: I n no event shall a prisoner bring a civil a c t i o n or appeal a judgment in a civil action or p r o c e e d i n g under this section if the prisoner h a s , on 3 or more prior occasions, while i n c a r c e r a t e d or detained in any facility,

Dockets.Justia.com

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b r o u g h t an action or appeal in a court of the U n i t e d States that was dismissed on the grounds t h a t it is frivolous, malicious, or fails to s t a t e a claim upon which relief may be granted, u n l e s s the prisoner is under imminent danger of s e r i o u s physical injury. I n a 2005 decision, the United States District Court for t h e Middle District of Florida rejected Rivera's a p p l i c a t i o n to proceed in forma pauperis on the ground t h a t he had violated the PLRA's "three strikes rule." Rivera v. Aramark, Inc., 2005 WL 1271368, at *1 (M.D. F l a . May 18, 2005). In support of its ruling, the

A r a m a r k court cited three cases filed in the Middle D i s t r i c t of Florida, each of which were dismissed because " t h e y were frivolous, malicious or failed to state a c l a i m upon which relief may be granted." Id.; see also

R i v e r a v. Allin, 144 F.3d 719, 730-32 (11 t h Cir.), c e r t . dismissed, 524 U.S. 978 (1998) (upholding district c o u r t ' s "three strikes" dismissal of Rivera's filing). Based upon the cases cited in the Aramark decision, t h i s Court is compelled by § 1915(g) to deny Rivera in f o r m a pauperis status. Rivera is currently incarcerated,

i s clearly a "three strikes" violator, and there is no i n d i c a t i o n that he is "under imminent danger of serious p h y s i c a l injury." 28 U.S.C. § 1915(g). 2 I therefore

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r e c o m m e n d that his motion to proceed in forma pauperis ( P a p e r 1) be DENIED, and that this case be DISMISSED w i t h o u t prejudice, subject to refiling only upon the full p a y m e n t of the filing fee. D a t e d at Burlington, in the District of Vermont, t h i s 25 t h day of August, 2006. / s / Jerome J. Niedermeier Jerome J. Niedermeier U n i t e d States Magistrate Judge

A n y party may object to this Report and Recommendation w i t h i n 10 days after service by filing with the clerk of t h e court and serving on the magistrate judge and all p a r t i e s , written objections which shall specifically i d e n t i f y the portions of the proposed findings, r e c o m m e n d a t i o n s or report to which objection is made and t h e basis for such objections. Failure to file o b j e c t i o n s within the specified time waives the right to a p p e a l the District Court's order. See Local Rules 72.1, 7 2 . 3 , 73.1; 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b), 6 ( a ) and 6(e).

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