Dumond v. Miami Dade Police Department

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 22-CV-23967-RAR

DANIEL DUMOND,

Plaintiff,

v.

OFFICER L. RODRIGUEZ,

Defendant.

___________________________________/

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS

THIS CAUSE comes before the Court on Defendant Officer Rodriguez’s Motion to

Dismiss (“Mot.”). [ECF No. 22]. Defendant argues that the Court should dismiss Plaintiff’s civil

rights complaint under 28 U.S.C. § 1915(g) (otherwise known as the “three-strikes” rule) since

Plaintiff “previously filed three other civil actions in forma pauperis, and all three were dismissed

for failing to state claims upon which relief may be granted.” Mot. at 1. Plaintiff filed a

Response—which he terms a “Motion to Dismiss the Defendant’s Motion to Dismiss”—to the

Motion. See Resp. [ECF No. 30]. Having reviewed Defendant’s Motion, the Response, the record,

and applicable law, and being otherwise fully advised, it is

ORDERED AND ADJUDGED that Defendant’s Motion is GRANTED as set forth

herein.

LEGAL STANDARD

“To commence a civil lawsuit in federal district court, the general rule is that initiating

parties must prepay a filing fee.” Rivera v. Allin, 144 F.3d 719, 722 (11th Cir. 1998) (citing 28

U.S.C. § 1914(a)), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007). A person

that is “unable to pay such fees or give security therefor” can avoid prepaying the filing fee by

filing a motion to proceed IFP. 28 U.S.C. § 1915(a). However, the passage of the Prison Litigation

Reform Act (“PLRA”) created an exception to this rule which applies only to prisoners with a

history of frequent (and meritless) filings:

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.

Id. § 1915(g); see also Rivera, 144 F.3d at 723 (“This provision of the PLRA, commonly known

as the ‘three strikes’ provision, requires frequent filer prisoners to prepay the entire filing fee before

federal courts may consider their lawsuits and appeals.” (internal quotation omitted)).

The purpose of this provision, also known as the “three-strikes rule,” is “to curtail abusive

prisoner litigation” by only allowing “a prisoner to file three meritless suits at the reduced rate

provided by that section. After the third meritless suit, the prisoner must pay the full filing fee at

the time he initiates suit.” Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (quoting

Vanderberg v. Donaldson, 259 F.3d 1321, 1324 (11th Cir. 2001)). A prisoner’s previous lawsuit

counts as a “strike” under § 1915(g) if: (1) the action was “commenced by a prisoner . . . who

seeks and is granted in forma pauperis status in that court,” Maldonado v. Baker Cnty. Sheriff’s

Off., 23 F.4th 1299, 1305 (11th Cir. 2022); and (2) the suit was “dismissed as frivolous, malicious,

or for failure to state a claim,” Daker v. Ward, 999 F.3d 1300, 1310 (11th Cir. 2021). If, after

receiving three “strikes,” a prisoner files a new suit while moving to proceed IFP, “a court must

dismiss the prisoner’s case.” Medberry v. Butler, 185 F.3d 1189, 1192 (11th Cir. 1999). The only

exception to this rule is if “the frequent filer prisoner is ‘under imminent danger of serious physical

injury.’” Rivera, 144 F.3d at 723 (quoting 28 U.S.C. § 1915(g)).

ANALYSIS

When Plaintiff filed the instant lawsuit, he asked (and received permission from the Court)

to proceed in forma pauperis. See Order Dismissing Complaint in Part and Granting Leave to

Amend [ECF No. 4] at 12–13 (granting Plaintiff’s IFP motion). Consequently, Defendant now

argues that § 1915(g) applies since “Plaintiff failed to pay the filing fee in full at the time he

initiated this action,” and that the PLRA mandates dismissal of the suit because “[w]hile

incarcerated, Plaintiff filed three Section 1983 actions in this district, the district courts screened

each of those complaints, and each district judge expressly dismissed the case before him/her for

failing to state a claim.” Mot. at 8–9. Defendant identifies the following three cases as “strikes”

under § 1915(g): Dumond v. Miami-Dade Department of Corrections & Rehabilitation (MDCR),

No. 21-CV-22917 (S.D. Fla. Aug. 10, 2021); Dumond v. Miami Dade Police Department (MDPD),

No. 21-CV-22918 (S.D. Fla. Aug. 10, 2021); and Dumond v. Carrington, No. 22-CV-20339 (S.D.

Fla. Jan. 31, 2022). See id.

After reviewing these cases, the Court agrees with Defendant that all three suits count as

“strikes” under § 1915(g). Each of these cases were filed while Plaintiff was incarcerated as a

pretrial detainee at the Metro West Detention Center in Miami-Dade County. See 28 U.S.C. §

1915(h) (defining a “prisoner” as “any person incarcerated or detained in any facility who is

accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law”);

see also Troville v. Venz, 303 F.3d 1256, 1259 (11th Cir. 2002) (“In assessing whether [the]

provisions [of the PLRA] apply to Troville, we must look to his status at the time he filed his

complaint.”). In all three cases, Plaintiff moved to proceed in forma pauperis and did not prepay

the filing fee. See IFP Motion, Dumond v. Miami-Dade Department of Corrections &

Rehabilitation, No. 21-CV-22917 (S.D. Fla. Aug. 10, 2021), ECF No. 3; IFP Motion, Dumond v.

Miami Dade Police Department, No. 21-CV-22918 (S.D. Fla. Aug. 10, 2021), ECF No. 3; IFP

Motion, Dumond v. Carrington, No. 22-CV-20339 (S.D. Fla. Jan. 31, 2022), ECF No. 3.

And, in all three cases, the district court explicitly dismissed Plaintiff’s complaints because

he failed to state a claim upon which relief can be granted under either 28 U.S.C. § 1915A or 28

U.S.C. § 1915(e)(2).1 See Order Dismissing Complaint, Dumond v. Miami-Dade Department of

Corrections & Rehabilitation, No. 21-CV-22917 (S.D. Fla. Aug. 20, 2021), ECF No. 4 at 4

(“Without an allegation of a custom, policy, or practice, the Complaint against Miami-Dade

Department of Corrections must be dismissed for failure to state a claim.”); Order Dismissing

Complaint, Dumond v. Miami Dade Police Department, No. 21-CV-22918 (S.D. Fla. Sept. 16,

2021), ECF No. 8 at 5 (“The Plaintiff’s Amended Complaint is dismissed without prejudice for

failure to state a claim upon which relief can be granted[.]”); Order Dismissing Complaint,

Dumond v. Carrington, No. 22-CV-20339 (S.D. Fla. Apr. 14, 2022), ECF No. 7 at 7 (“[The Court

will] dismiss the Amended Complaint for ‘failing to state a claim on which relief can be granted.’”

(alteration omitted) (quoting 28 U.S.C. § 1915(e)(2)(b)(ii))). Thus, all three of these dismissals

count as “strikes” under § 1915(g). See Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 1724 (2020)

(“[A] prisoner accrues a strike for any action dismissed on the ground that it fails to state a claim

upon which relief may be granted.” (cleaned up)).

1 The Eleventh Circuit has held that a case that is dismissed under the screening provisions of § 1915A

and/or § 1915(e)(2) is properly considered a “strike” under § 1915(g). See Wells v. Brown, 58 F.4th 1347,

1357 (11th Cir. 2023) (“The three-strikes rule uses the same ‘fails to state a claim on which relief may be

granted’ language as the screening requirements[.]”); see also Crummie v. Veloz, No. 10-CV-23571, 2010

WL 5059560, at *1 (S.D. Fla. Nov. 10, 2010) (explaining that “[c]ivil rights claims . . . which are dismissed

pursuant to the [PLRA] under the provisions of [§ 1915A], and/or [§ 1915(e)(2)]” count as “strikes” under

§ 1915(g)).

Section 1915(g)’s “serious physical injury” exception also does not apply. A complaint

that would otherwise be dismissed under the three-strikes rule can survive only if the plaintiff

alleges that, at the time he filed his complaint, “he is in imminent danger of serious physical

injury.” Brown v. Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004) (citing 28 U.S.C. § 1915(g)).

Although Plaintiff alleges that he previously received serious physical injuries as a result of

Defendant’s actions, he never claims that he was facing the threat of additional physical injuries

at the time he filed his Complaint. See generally Complaint [ECF No. 1]. Since Plaintiff is not

facing “imminent danger of [a] serious physical injury” and “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,” his current Complaint is subject to dismissal under the three-

strikes rule. 28 U.S.C. § 1915(g).

In his Response, Plaintiff appears to concede that he is a three-striker but asks the Court

not to apply § 1915(g) because of his pro se status and lack of knowledge regarding civil procedure

and the law. See Resp. at 4 (“The Plaintiff asserts that the Court have never warns him about the

three strikes rule. . . . Due to the Court negligence this three strike rule should not be against the

Plaintiff.” (errors in original)). This argument is not persuasive. Although pro se litigants are

entitled to have their pleadings liberally construed, they still have the burden to correctly follow

all applicable laws and procedural rules. See Moon v. Newsome, 863 F.2d 835, 837 (11th Cir.

1989) (“[O]nce a pro se IFP litigant is in court, he is subject to the relevant law and rules of

court[.]”). It is not the Court’s responsibility to act as Plaintiff’s lawyer by teaching him about the

three-strikes rule and advising him about the best way to present his claims. See Horne v. Potter,

No. 07-CV-61829, 2009 WL 10667086, at *3 n.5 (S.D. Fla. Mar. 11, 2009) (“While the Court

understands that it is difficult for non-lawyers such as Plaintiff to be conversant in the rules of the

Court, this does not provide a basis for the Court to give legal advice to one party because he or

she 1s pro se.”).

The fact remains that Congress enacted the three-strikes rule to “curtail abusive prisoner

litigation,” and Plaintiff falls into the specific class of abusive filer that § 1915(g) is designed to

penalize. Dupree, 284 F.3d at 1236. Since Plaintiff chose to file multiple meritless lawsuits while

incarcerated, he has now forfeited his right to bring a lawsuit in federal court without first paying

the entire filing fee up front. See Rivera, 144 F.3d at 732 (holding that § 1915(g) does not violate

the Constitution).

CONCLUSION

Based on the foregoing, and having carefully reviewed the record and governing law, it is

ORDERED AND ADJUDGED that Defendant’s Motion to Dismiss [ECF No. 22] is

GRANTED. Plaintiff's Complaint [ECF No. 1] is DISMISSED without prejudice under 28

U.S.C. § 1915(g). All pending motions are DENIED as moot. The Clerk is instructed to CLOSE

the case.

DONE AND ORDERED in Miami, Florida, this 7th day of April, 2023.

UNITED STATES DISTRICT JUDGE

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