Hart v. Auburndale Police Department

• Court: District Court, M.D. Florida
• Decided: August 20, 2020
• Docket: 8:20-cv-01796
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

RANDY A. HART,

Plaintiff,

v. Case No: 8:20-cv-1796-T-02TGW

AUBURNDALE POLICE DEPARTMENT,

Defendant. /

ORDER This cause comes before the Court on Plaintiff’s civil rights complaint (Doc. 1), and apparent supplements or amendments thereto (Docs. 3, 4),1 as well as a document titled “Access to Courts” (Doc. 5). Having reviewed the documents and being otherwise fully advised the Court Orders as follows: Plaintiff initiated this action on August 3, 2020, and, as of the date of this order, has not paid the filing fee. The Court, accordingly, treats this action as an in forma pauperis proceeding under 28 U.S.C. § 1915. The Prison Litigation Reform Act (“PLRA”) amended 28 U.S.C. § 1915 by adding the following subsection: (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,

1 Each of the three documents is titled “Civil Rights Complaint.” (See Docs. 1, 3, 4). 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). Plaintiff’s prior cases, dismissed as either frivolous, malicious, or for the failure to state a claim upon which relief may be granted include: Hart v. Judd,

8:11-cv-1590-T-33TBM, Hart v. State of Florida, 8:13-cv-2533-T-30MAP, Hart v. Knight, 8:16-cv-1337-T-33JSS, and Hart v. Hays, 16-cv-1391-T-17TGW. In an apparent attempt to satisfy the “imminent danger” exception, Plaintiff

states in his “Access to Courts” filing that he “has suffered bodily injury on June 10, 2020.” (Doc. 5 at 3). However, he provides no further details about the injury or surrounding circumstances. This is insufficient to satisfy the exception. See e.g., Ball v. Allen, No. 06-0496-CG-M, 2007 WL 484547 (S.D. Ala. Feb. 8, 2007) (explaining

that “[t]he plaintiff must allege and provide specific fact allegations of ongoing serious physical injury, or a pattern of misconduct evidencing the likelihood of imminent serious physical injury, and vague allegations of harm and unspecific references to injury are insufficient.” (Citations and quotation marks omitted)). Therefore, because he has had three prior dismissals that qualify under Section 1915(g) and because he has not sufficiently alleged that he is in imminent danger of serious physical injury, Plaintiff is not entitled to proceed in forma pauperis. This preclusion against proceeding in forma pauperis is without regard to the merits of the present civil rights complaint. Plaintiff may initiate a new civil rights case by filing a civil rights complaint and paying the filing fee in full. Accordingly, the case is DISMISSED WITHOUT PREJUDICE to the filing of a new complaint, in a new case, with a new case number, upon the payment of the filing fee. The CLERK is directed to TERMINATE any pending motions and to CLOSE this case. DONE and ORDERED in Tampa, Florida on August 20, 2020.

wm eA, UNITED STATES DISTRICT JUDGE