Mallon v. Belanger

United States District Court

for the

Southern District of Florida

Jeffrey Mallon, )

Plaintiff, )

)

v. ) Civil Action No. 22-14399-Scola

)

Robert Belanger, et. al.,

Defendants.

Order

Before the Court is Plaintiff Jeffrey Mallon’s pro se Complaint under 42

U.S.C. § 1983 (“Complaint”) (ECF No. 1). Mallon also filed, what the Court

construes as, a Motion to Proceed in forma pauperis. (“IFP Motion”) (ECF No. 3).

Therein, Mallon requests that the Court call his mother to request payment of

the $402 filing fee. (See id. at 1). For the following reasons, the Complaint is

dismissed with prejudice under the “three-strikes” provision of 28 U.S.C. §

1915(g) and the IFP Motion is denied as moot.

Legal Standards

When a prisoner-plaintiff proceeds IFP, his complaint must be screened

under the provisions of 28 U.S.C. § 1915(g)—also known as the “three strikes

provision.” White v. Lemma, 947 F.3d 1373, 1379 (11th Cir. 2020) (“[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,

[but] the court may also consider the merits to dismiss the case with prejudice

instead.”). The three-striker cannot pay the filing fee after he has initiated the

suit to cure his failure to pay said fee at the time he initiated the suit. See

Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (per curiam). The

“three-strikes provision” reads, in pertinent part, as follows:

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.

§ 1915(g).

As noted, § 1915(g) contains an exception for prisoners who are “under

imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). Under §

1915(g), courts must “look to the prisoner’s complaint ‘as a whole,’ construing

it liberally and accepting his allegations as true.” Smith v. Clemons, 465 F.

App’x 835, 836 (11th Cir. 2012) (per curiam) (quoting Brown v. Johnson, 387

F.3d 1344, 1350 (11th Cir. 2004)). However, vague and conclusory allegations

of being in imminent danger of serious physical injury “do not satisfy the

dictates of § 1915(g).” Skillern v. Paul, 202 F. App’x 343, 344 (11th Cir. 2006)

(per curiam). Furthermore, the prisoner “must be under imminent danger of

serious physical injury[] . . . at the time he filed his complaint[].” Clemons, 465

F. App’x at 836 (citing Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir.

1999)).

Discussion

In his rambling and largely incomprehensible Complaint, Mallon asserts,

without providing reason, that his “due process rights were violated.”

Complaint at 2. He continues to attack the sufficiency of the State’s evidence

against him, see id. at 3–4 (“At this point the evidence is insufficient to warrant

a conviction.”), he asserts that he was forced “to accept against his will a court-

appointed Assistant Public Defender” depriving him of the right to self-

representation, id. at 8–9, and he concludes by announcing that “cruel and

unusual punishment is an issue” due to past detainee batteries against him,

id. at 9.

Because Mallon has not paid the filing fee and requests to proceed IFP, §

1915 requires the Court to determine whether, “on 3 or more occasions, while

incarcerated or detained in any facility, [Mallon] 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[.]” 28 U.S.C. § 1915(g). The answer is yes.

Mallon is a serial filer in our Court. Judge Altman’s December 5, 2022

Order provides a detailed recounting of Mallon’s history. See Mallon v. St. Lucie

County, No. 22-14396-CIV (S.D. Fla. Dec. 5, 2022) (Altman, R), ECF No. 4 at 9

(dismissing the complaint with prejudice as “frivolous, malicious, and an abuse

of the judicial process.”).

In addition to the “strike” incurred from Judge Altman’s recent order,

Mallon has three additional § 1983 complaints that were dismissed because

they “fail[ed] to state a claim upon which relief can be granted.” 28 U.S.C. §

1915(g). Chief Judge Altonaga, dismissed two of Mallon’s complaints after

finding that Mallon had failed to state a plausible claim. See Order Dismissing

Complaint, Mallon v. Badger, No. 21-14026-CIV (S.D. Fla. Jan. 20, 2021)

(Altonaga, J.), ECF No. 4 at 1 (“Upon initial screening, the Court finds Plaintiff’s

Complaint must be dismissed for failure to state a claim upon which relief can

be granted.”); Order Dismissing Complaint, Mallon v. Florida, No. 22-14033-CIV

(S.D. Fla. Jan. 27, 2022) (Altonaga, C.J.), ECF No. 4 at 1 (“Upon initial

screening, the Court finds Plaintiff’s Complaint must be dismissed for failure to

state a claim upon which relief can be granted.”). And Judge Dimitrouleas

dismissed one of Mallon’s complaints both because it was “frivolous” and

because it failed “to state a claim upon which relief can be granted.” Order on

Screening, Mallon v. Florida, No. 22-14084-CIV (S.D. Fla. Mar. 10, 2022)

(Dimitrouleas, J.), ECF No. 4 at 7.

Because all four of these complaints—all filed while Mallon was

incarcerated—“were dismissed for failure to state a claim,” or as “frivolous,

malicious, and an abuse of the judicial process,” Mallon has four strikes and is

“barred from proceeding IFP[.]” Mitchell v. Nobles, 873 F.3d 869, 873–74 (11th

Cir. 2017) (citing 28 U.S.C. § 1915(g)).

Mallon could avoid the three-strikes label by alleging that he “is under

imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). Mallon does

not try to qualify for this exception. See generally Complaint. At most, he

complains about past detainee batteries, but he does not allege any imminent

or ongoing danger. See Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir.

1999). Thus, the imminent-danger exception does not apply. See Abdullah v.

Migoya, 955 F. Supp. 2d 1300, 1307 (S.D. Fla. 2013) (Zloch, J.) (“A plaintiff

must provide the court with specific allegations of present imminent danger

indicating that a serious physical injury will result if his claims are not

addressed.”). Accordingly, Mallon is subject to the three-strikes rule—and

because he failed to pay the filing fee, his Complaint must be dismissed. See

White, 947 F.3d at 1377 (“We have construed this language to mean that a

district court must dismiss a prisoner’s claims when the prisoner has three

strikes but failed to pay the filing fee when the suit began.”).

Moreover, the Court finds that Mallon’s Complaint is frivolous, malicious,

and an abuse of the judicial process and should therefore be dismissed with

prejudice. See White, 947 F.3d at 1379 (“So 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.”). A “duplicative

complaint” represents an “abuse of the judicial process” and can be “properly

dismissed as frivolous or malicious.” Daker v. Ward, 999 F.3d 1300, 1308 (11th

Cir. 2021); see also Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001) (“A

claim is frivolous if it is without arguable merit either in law or fact.”). The

Eleventh Circuit has consistently affirmed the with-prejudice dismissal of

frivolous and malicious § 1983 complaints. See, e.g., Broner v. Wash. Mut.

Bank, F.A., 258 F. App’x 254, 256–57 (11th Cir. 2007) (“[T]he district court did

not abuse its discretion in finding her complaint frivolous and did not err in

finding that it failed to state a claim. Accordingly, her complaint was properly

dismissed with prejudice, pursuant to § 1915(e)(2).”); Nails v. Franklin, 279 F.

App’x 899, 901 (11th Cir. 2008) (“We agree that Plaintiff's suit is frivolous and

should be dismissed with prejudice.”).

As explained in Judge Altman’s recent order:

Mallon has filed at least ten other cases in our Court since 2020—all of

which raised the same general complaints about the constitutionality of

his detention in the St. Lucie County Jail. And all of these have been

dismissed for one or more of the following reasons: because they failed to

state a viable claim, because they were frivolous, because their claims

were barred by the Younger abstention doctrine, or because Mallon failed

to exhaust his administrative remedies.

Mallon v. St. Lucie County, No. 22-14396-CIV (S.D. Fla. Dec. 5, 2022) (Altman,

R), ECF No. 4 at 7-8. The present Complaint marks Mallon’s eleventh frivolous

case in our Court containing “claims duplicative of claims he had already

asserted.” Daker, 999 F.3d at 1310. As such, dismissal with prejudice is

appropriate. !

Conclusion

Accordingly, it is ordered and adjudged that this action is dismissed

with prejudice as frivolous, malicious, and an abuse of the judicial process.

The clerk is directed to close the case and all pending motions are denied as

moot.

Done and ordered, in chambers, in Miami, Florida, on December 6,

2022.

Robert N. Scola, Jr.

United States District Judge

Copies, via U.S. Mail, to

Jeffrey W. Mallon

37449

St. Lucie County Jail

Inmate Mail/Parcels

Mallon is also warned that if he continues to submit abusive and frivolous filings, the Court will

not hesitate to sanction him—including with monetary sanctions. Cf Procup v. Strickland, 792

F.2d 1069, 1074 (11th Cir. 1986) (en banc) (“[Mallon] can be severely restricted as to what he

may file and how he must behave in his applications for judicial relief.”); Roggio v. United States,

2013 WL 12176990, at *2 (S.D. Fla. Apr. 10, 2013) (Goodman, Mag. J.) (“Because Roggio is

abusing the reconsideration motion mechanism, any future, any future violations may lead to

an award of sanctions, including costs, attorney’s fees, and/or other monetary or non-monetary

sanctions, against him.”).

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