Faison v. State of Florida ( 2020 )

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA Miami Division Case Number: 19-25264-CIV-MORENO MATTHEW FAISON, Plaintiff, VS. STATE OF FLORIDA, Defendant. / ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION AND DISMISSING CASE WITHOUT PREJUDICE THE MATTER was referred to the Honorable Lisette M. Reid, United States Magistrate Judge, for a Report and Recommendation on Plaintiff's Complaint made pursuant to 42 U.S.C. § 1983, filed on December 23, 2019. The Magistrate Judge filed a Report and Recommendation (D.E. 6) on January 10, 2020. The Court has reviewed the entire file and record. The Court has made a de novo review of the issues presented in the Magistrate Judge’s Report and Recommendation. The Court notes that no objections have been filed and the time for doing so has now passed. Being otherwise fully advised in the premises, it is ADJUDGED that Magistrate Judge Reid’s Report and Recommendation is AFFIRMED and ADOPTED. Plaintiff's Complaint is DISMISSED without prejudice as Plaintiff, a “three striker” under 28 U.S.C. § 1915(g), must first pay the requisite filing fee before initiating a new action. As outlined in the Report and Recommendation, Plaintiff has, on three or more prior occasions while incarcerated or detained, brought an action or appeal that was dismissed on grounds of being frivolous. As such, the nature of his past litigation now disqualifies him from proceeding in forma pauperis without prepayment of the filing fee. See Howard v. Kraus, 642 F. App’x 940, 941 (11th Cir. 2016) (“A prisoner who has been struck out by this provision must prepay the entire filing fee in any future cases he files while incarcerated rather than proceeding IFP. When a prisoner with three strikes tries to proceed IFP, his suit is due to be dismissed without prejudice.” (citing Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002)). While Plaintiff could qualify for an exception to this filing fee requirement as a result of being “under imminent danger of serious physical injury,” after an additional review of the complaint, the Court finds that he does not meet this exception. 28 U.S.C. § 1915(g). DONE AND ORDERED in Chambers at Miami, Florida, this 2 of January 2020. We Z Le UNITED STATES DISTRICT JUDGE Copies furnished to: . United States Magistrate Judge Lisette M. Reid Matthew Faison 038634-CI-125 Calhoun Correctional Institution Inmate Mail/Parcels 19562 SE Institution Drive Blountstown, FL 32424 PRO SE