Gorbey v. Harr

• Court: District Court, M.D. Florida
• Decided: July 31, 2023
• Docket: 5:23-cv-00459
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA OCALA DIVISION

MICHAEL S. GORBEY,

Plaintiff,

v. Case No: 5:23-cv-459-WFJ-PRL

FNU HARR, et al.,

Defendants. / ORDER THIS CAUSE is before the Court on Plaintiff Michael S. Gorbey’s Civil Rights Complaint filed pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), (Doc. 1), in which he alleges that staff at United States Penitentiary Coleman continue to harass him by seizing Plaintiff’s writing materials and performing unnecessary cell searches. Plaintiff also seeks leave to proceed in forma pauperis under 28 U.S.C § 1915. (Doc. 2). Section 1915(g) of Title 28 limits a prisoner’s ability to bring a civil action in forma pauperis under certain circumstances: (g) 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 imminent danger of serious physical injury. 28 U.S.C. § 1915(g). Thus, if a prisoner has had three or more cases dismissed for one of the recited reasons, he cannot proceed in forma pauperis and must pay the filing fee in full at the time the lawsuit is initiated. Dupree v. Palmer, 284 F.3d 1234, 1236 (11th

Cir. 2002). Consequently, courts have a responsibility to dismiss cases, even sua sponte, under 28 U.S.C. §1915(g). See, e.g., Casey v. Scott, 493 F. App’x 1000, 1001 (11th Cir. 2012). The Court takes judicial notice filings previously brought by Plaintiff that were

dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted. Plaintiff is a three-strikes litigant pursuant to 28 U.S.C. § 1915(g). See Order (Doc. 4), Gorbey v. Federal Bureau of Prisons, et al., Case No. 5:10-cv-309-CEH-GRJ (M.D. Fla. July 28, 2010) (finding that Plaintiff has previously been designated a three- strikes litigant). Accordingly, Plaintiff is barred from proceeding as a pauper in a civil

action unless he is under “imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). Plaintiff’s allegations of past harms1 are insufficient to show he is under imminent danger of serious physical injury. Daker v. Robinson, 802 F. App'x 513, 515 (11th Cir. 2020) (citing Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999)).

Plaintiff may initiate a new civil rights case by filing a civil rights complaint and paying the filing fee in full. It is now ORDERED and ADJUDGED:

1 Plaintiff states he was physically assaulted on July 5, 2023, July 6, 2023, and July 9, 2023. (Doc. 1 at 4). Plaintiff does not state who assaulted him on those dates. 1. This case is hereby DISMISSED without prejudice. 2. The Clerk of Court is directed to terminate any pending motions, close this case, and enter judgment accordingly. DONE and ORDERED in Tampa, Florida on July 31, 2023.

WILLIAM F. ca UNITED STATES DISTRICT JUDGE

Copies furnished to: Pro Se Plaintiff Counsel of Record