The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
ROBERT L. WRIGHT,
D.O.C. # D-U01281,
Plaintiff,
vs. CASE NO. 4:24-cv-314-WS-MAF
OFFICER MR. BROWN,
Defendant.
_______________________/
REPORT AND RECOMMENDATION
Plaintiff, who is a pro se prisoner and serial litigant, submitted a civil
rights complaint, ECF No. 1, on August 12, 2024. Plaintiff also filed a
prisoner consent form, ECF No. 2, signaling an intent to proceed in forma
pauperis (IFP). He has not paid the filing fee. Even if Plaintiff had filed a
proper IFP motion, it would not be reviewed. That is because Plaintiff is well
known to this Court as a three-striker under the Prison Litigation Reform Act
(PLRA). In the past 8 months, Plaintiff has filed at least 19 cases.1
1 Judicial notice is taken of the following cases filed by Plaintiff since January 2024: 4:24-
cv-00006-MW-MAF (dismissed on 3/3/24 for failure to comply with court orders); 4:24-cv-
00011-AW-MAF(dismissed on 3/25/24 for failure to comply with court orders); 4:24-cv-
00012-MW-MAF (dismissed on 3/20/24 as frivolous and for failure to comply with court
orders); 4:24-cv-00017-WS-MAF (dismissed on 4/9/24 as malicious and for failure to
comply with court orders; appeal dismissed on 5/17/24 for failure to pay the filing fee);
4:24-cv-00051-AW-MAF (dismissed on 4/28/24 for failure to comply with court orders);
4:24-cv-00060-WS-MAF (dismissed on 4/25/24 for failure to comply with court orders);
4:24-cv-00088-MW-MAF (dismissed on 5/24/24 for failure to comply with court orders);
Sometimes Plaintiff’s complaints have been on the court form as
required by the rules of this Court, but sometimes they have not. This case
was initiated by the submission of the court form, which required him to
disclose all prior cases he had filed and inform the Court if he had
accumulated “three strikes.” ECF No. 1 at 8-9. Such disclosures are
necessary because the PLRA prohibits a prisoner from bringing a civil action
without prepaying the filing fee “if the prisoner has, on 3 or more prior
occasions…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).
Though Plaintiff acknowledged that he has had at least one case
dismissed under that statute, he failed to identify any case numbers or dates
of dismissal as required by the court form. ECF No. 1 at 9.
4:24-cv-00107-AW-MAF (dismissed on 5/17/24 for failure to comply with court orders);
4:24-cv-00108-WS-MAF (dismissed on 6/24/24 for failure to comply with court orders);
4:24-cv-00132-WS-MJF (dismissed on 4/30/24 for failure to state a claim; appeal
dismissed on 6/17/24 for failure to pay the filing fee and failure to comply with court rules);
4:24-cv-00142-MW-MJF (pending order on recommended dismissal for failure to comply
with court orders filed 8/6/24); 4:24-cv-00155-WS-MAF (dismissed on 5/24/24 pursuant
to 28 U.S.C § 1915(g)); 4:24-cv-00212-WS-MAF (dismissed on 7/6/24 pursuant to 28
U.S.C § 1915(g)); 4:24-cv-00235-MW-MAF (dismissed on 6/26/24 pursuant to 28 U.S.C
§ 1915(g)); 4:24-cv-296-MW-MAF (dismissed on 8/22/24 pursuant to 28 U.S.C §
1915(g)); 4:24-cv-00310-MW-MAF (pending order on recommended dismissal pursuant
to 28 U.S.C § 1915(g) filed 8/12/24); 4:24-cv-321-MCR-MAF (pending order on
recommended dismissal pursuant to 28 U.S.C § 1915(g) filed 8/19/24); and 4:24-cv-320-
MCR-MJF (filed August 15, 2024).
Judicial notice is taken that Plaintiff has had three prior cases
dismissed for reasons which count as a “strike” under § 1915(g).
On January 10, 2024, Plaintiff filed case number 4:24-cv-12-MW-MAF
in this Court. It was dismissed March 20, 2024 both as frivolous and for
failure to comply with a court order. ECF No. 11 of that case. That dismissal
counts as Plaintiff’s first strike.
Also on January 10, 2024, Plaintiff filed case number 4:24-cv-17-WS-
MAF in this Court. It was dismissed on April 9, 2024, “as a shotgun pleading,
as malicious based on [Plaintiff’s] affirmative misrepresentations regarding
his litigation history, for failure to comply with court orders, and for failure to
pay the filing fee.” ECF No. 26 of that case. That dismissal counts as
Plaintiff’s second strike.
On March 18, 2024, Plaintiff filed case number 4:24-cv-132-WS-MJF
in this Court. It was dismissed on April 30, 2024 because Plaintiff’s complaint
failed to state a claim. ECF No. 19 at that case. That dismissal counts as
Plaintiff’s third strike.
All three cases cited above were filed while Plaintiff was a prisoner.
Therefore, because Plaintiff has three strikes, he is not entitled to proceed
without paying the filing fee at the time of case initiation unless he alleges
that he is “under imminent danger of serious physical injury.” 28 U.S.C. §
1915(g). Plaintiff presents no such allegations in his complaint, ECF No. 1.
In this case, Plaintiff alleges “Mr. Brown sent [Plaintiff] a gift on July 11,
2024 to Taylor CI from Kansas City, MO.” Id. at 5. That sentence is the
entirety of Plaintiff’s factual allegations against Defendant Brown, who is
allegedly an Internal Revenue Service (IRS) employee. Id. at 2. Plaintiff
claims the following rights have been violated: “with entity criterion Fed. R.
Evid. 201,”2 “Primage,”3 “§ 772.101 Civil Remedies for Criminal Practices
Acts [sic] Laws,”4 “§ 2000cc-1(a),”5 “violation of immunity,” “§ 1983 et seg.”
Id. at 7. He also cites 28 U.S.C § 1346.6 Id. at 16. He seeks $50 million in
monetary damages in the form of an “IRS voucher.” Id. at 7. Plaintiff makes
no allegations that he is facing imminent danger from any person or situation
(nor has he in any of the 18 other cases he has filed this year). The complaint
has no basis in law or fact, is frivolous, and fails to state a claim.
Ordinarily, this case would be dismissed in one of two ways. It could
2 Rule 201 “governs judicial notice of an adjudicative fact.” Fed. R. Evid. 201(a).
3 “A small payment made by shippers to the captain of a ship for his [or her] special care
of their goods.” Primage. Merriam-Webster.com, https://www.merriamwebster.com/
dictionary/primage. (Accessed Aug. 16, 2024).
4 Florida Stat. §§ 772.10-772.19 is the civil damages section of the Florida RICO Act.
5 Protection of religious exercise of prisoners.
6 28 U.S.C § 1346(a)(1) allows a “civil action against the United States for the recovery
of any internal-revenue tax alleged to have been erroneously or illegally assessed or
collected…”
be summarily dismissed without prejudice because Plaintiff did not submit
the filing fee at the same time the complaint was submitted, and as a three-
striker, Plaintiff is not entitled to belatedly pay the filing fee. Dupree v. Palmer,
284 F.3d 1234, 1236 (11th Cir. 2002). “The prisoner cannot simply pay the
filing fee after being denied in forma pauperis status.” Id. Alternatively, it
could be dismissed with prejudice as frivolous.7
This time though, § 1915 does not end the Court’s recommendation.
Plaintiff’s continuous abuse of the judicial process must be addressed. Of
the 18 cases that have reached the report and recommendation stage so far,
all have either been dismissed or recommended for dismissal: seven have
been dismissed for failure to comply with a court order; three have been
dismissed as either frivolous, malicious, or for failure to state a claim; four
have been dismissed under the three-strikes provision; and four (this case
included) are pending orders on recommendations for dismissal due to either
failure to comply with court orders or the three-strikes provision.
Plaintiff is well-aware that he is a three-striker under § 1915(g) and is
prohibited from bringing a case without full payment of the filing fee unless
7 The Eleventh Circuit has consistently affirmed dismissal with prejudice of frivolous
complaints. See, e.g., Broner v. Washington Mut. Bank, FA, 258 F. App'x 254, 256 (11th
Cir. 2007); Austin v. Judge, 851 F. App'x 173, 175 (11th Cir. 2021); Nails v. Franklin, 279
F. App'x 899, 901 (11th Cir. 2008); Hernandez v. Palm Beach Cnty. State Att'y, No. 23-
11024, 2023 WL 9642821, at *2 (11th Cir. Aug. 31, 2023), cert. denied, 144 S. Ct. 1121,
218 L. Ed. 2d 355 (2024).
he is under imminent danger of serious physical harm.8 Yet he treats the
judicial system like someone who is unhappy with their Magic 8 Ball—ask
again, maybe the answer will change. It will not. By continually filing
complaints without paying the filing fee (none of which allege imminent
danger) and motions for in forma pauperis status, he shows a complete
disregard not only for orders filed by various judges of the Northern District,
but the law generally.9
In fact, he shows no signs of stopping. Since first being informed of his
status as a three-striker and what that meant in an order three months ago,
Plaintiff has filed half a dozen complaints in direct defiance of court orders.10
A review of his complaints shows a continual pattern of filing frivolous
claims. An overwhelming majority have been directed toward the IRS,
usually alleging various IRS employees sent him ‘vouchers’ for large sums
of money.11 After one of those cases was dismissed as frivolous, he
8 Prior to Plaintiff's submission of the instant complaint on August 12th, he was told this
in three separate orders (May 24th, June 26th, and July 6th). Since then, another order told
him the same thing.
9 Plaintiff has been sent at least one dismissal order a month since March (often more
than one – in April, for example, it was four). Double that to include the reports
recommending dismissal, which explained to Plaintiff in detail the reasons his claims were
insufficient.
10 In a recent seven-day period, Plaintiff filed four complaints, including two in one day.
11 Ten, including this case, relate to IRS ‘vouchers’; three to the IRS or another bank
harassing him (See n.1, cases ending in 6, 12, 17, 60, 107, 108, 212, 296, 321; and 11,
61, and 68).
attempted to sue the magistrate judge and rehash the voucher issue again.12
He filed a complaint against a book author because he thought the book was
talking about him and the author spelled his name wrong.13 He has also filed
complaints alleging various wrongs by the prison system, including having to
work during Ramadan, the mail system not giving him a book ordered with
his IRS vouchers, and two cases that allege injuries on the same day (one
claims his shoulder was burned in a cemetery while in prison, the other that
he was forced on a stretcher).14 Not a single claim has been deemed
sufficient for service.
Dismissal with prejudice is a typical avenue for frivolous complaints
outside of Rule 11 and should be done here. But Plaintiff’s vexatious litigation
is far from typical. In this case, Plaintiff acknowledged the Rule 11(b)
certification on the complaint form in two separate places and signed under
one. ECF No. 1 at 12, 13. It states:
“I declare under penalty of perjury that the foregoing (including all
continuation pages) is true and correct. Additionally, as required by
Federal Rule of Civil Procedure 11, I certify to the best of my
knowledge, information, and belief that this complaint: (1) is not being
presented for an improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation; (2) is
supported by existing law or by a nonfrivolous argument for extending,
modifying, or reversing existing law; (3) the factual contentions have
12 See n.1, case ending in 132, dismissed for failure to state a claim.
13 See n.1, case ending in 235.
14 See n.1, cases ending in 155, 142, 320, 310.
evidentiary support or, will likely have evidentiary support after a
reasonable opportunity for further investigation or discovery; and (4)
the complaint otherwise complies with the requirements of Rule 11.”
Id. at 11, 13. Plaintiff is well beyond the point of filing complaints for improper
purposes. He has been repeatedly told by this Court how to properly proceed
and plead a complaint. He willfully ignores those orders. Take his IRS
vouchers claim: It has previously been dismissed as frivolous and was his
first strike.15 Yet he re-files similar frivolous claims with different defendant
names—including here—swearing under penalty of perjury that it is not
frivolous. In the other cases filed this year, he has affirmatively
misrepresented his litigation history, submitted malicious complaints, failed
to state a claim, failed to comply with court orders, failed to pay the filing fee,
and filed improper pleading after improper pleading which have failed to
comply with the Local Rules. See 1-2 n.1.
Rule 11 authorizes sanctions against litigants who, like Plaintiff, file
frivolous or malicious lawsuits – even if they are pro se. See Thomas v.
Evans, 880 F.2d 1235, 1240 (11th Cir. 1989); Moon v. Newsome, 863 F.2d
835, 837 (11th Cir. 1989); Fed. R. Civ. P. 11(c). The Eleventh Circuit has
explained why sanctions are necessary:
“History teaches us that unless cases are pled clearly and precisely,
... [a] trial court's docket becomes unmanageable, the litigants suffer,
15 See 4:24-cv-12-MW-MAF, ECF Nos. 7, 11, also discussed supra at 3.
and society loses confidence in the court's ability to administer
justice. Filing a lawsuit is a serious matter, which often times results
in significant consequences to the parties. And judicial resources
are far too scarce to be exploited by litigants who, after being
specifically advised about how to correct their errors…continue
in their recalcitrance.”
Nurse v. Sheraton Atlanta Hotel, 618 Fed. Appx. 987, 990-91 (11th Cir. 2015)
(internal quotations omitted, emphasis added). Rule 11 sanctions can be
imposed for “deterrence, compensation, and punishment.” Aetna Ins. Co. v.
Meeker, 953 F.2d 1328, 1334 (11th Cir. 1992). Further, a prisoner’s
constitutional right to access the courts is not unconditional. Cobble v. U.S.
Gov't, 816 F. App'x 355, 360 (11th Cir. 2020). It must be balanced by this
Court’s own constitutional obligation to maintain its docket and protect the
jurisdiction from abusive filings. E.g., Id.; Maid of The Mist Corp. v. Alcatraz
Media, LLC, 388 F. App'x 940, 942 (11th Cir. 2010); Procup v. Strickland, 792
F.2d 1069, 1073 (11th Cir.1986). Plaintiff, like anyone else, cannot misuse
the courts with impunity. Moon v. Newsome, 863 F.2d 835, 838 (11th Cir.
1989).
Rule 11 sanctions are warranted in three circumstances. They include
when a party files a pleading: “that has no reasonable factual basis;” “that is
based on a legal theory that has no reasonable chance of success and that
cannot be advanced as a reasonable argument to change existing law;” or
“in bad faith for an improper purpose.” Didie v. Howes, 988 F.2d 1097, 1104
(11th Cir. 1993) (internal quotations omitted). All are present here.
Determining whether sanctions are appropriate is a two-step process.
Baker v. Alderman, 158 F.3d 516, 524 (11th Cir. 1998). The Court must
determine if Plaintiff’s claims are “objectively frivolous” and, if so, whether
Plaintiff, who signed the pleading, “should have been aware that [the claims]
were frivolous.” Id. The standard is reasonableness. Id.
No competent pro se litigant would have believed Plaintiff’s complaint
had a reasonable chance of success, and thus it is objectively frivolous. See
Id. As previously discussed, Plaintiff attempts to sue Defendant, an IRS
officer, in his individual capacity because Defendant sent him “a gift.” ECF
No. 1 at 5. Even if accepted as true and construed liberally, there is nothing
unconstitutional about sending someone a gift. And even if Plaintiff had a
valid constitutional claim, it would be prohibited under Bivens:16,17
“26 U.S.C. § 7433(a) by its terms provides the exclusive remedy for
recovering damages against an IRS employee for wrongful collection
activities...the availability of adequate statutory avenues for relief
forecloses a Bivens action against individual IRS agents for alleged
constitutional violations with respect to the collection and assessment
of taxes.”
16 Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971).
17 Though Plaintiff claims to be pursuing a § 1983 action against a State or local official,
ECF No. 1 at 4, IRS employees are federal officials. The Court construes the complaint
as a Bivens action. See Marshall v. United States, 763 F. App'x 862, 864 (11th Cir. 2019).
Al-Sharif v. United States, 296 F. App'x 740, 741 (11th Cir. 2008). The Court
has considered Plaintiff’s pro se status. Still, Plaintiff’s complaint fails to
articulate a factual basis for any claim, fails to follow the pleading
requirements under the Local Rules and the Federal Rules of Civil
Procedure, and seeks a cause of action that is barred under Bivens. Because
of that, it is objectively frivolous.
Further, Plaintiff should have known his claim was frivolous. As
discussed above, Plaintiff has had similar claims dismissed for failure to state
a claim and as frivolous.18 Plaintiff is no stranger to this process – in eight
months he has been on the receiving end of fourteen dismissals. “On the
question of frivolousness, a litigant's history of bringing unmeritorious
litigation can be considered.” Bilal v. Driver, 251 F.3d 1346, 1350 (11th Cir.
2001). Even without the benefit of numerous court orders—and setting the
delusional facts aside—any basic inquiry into the law would have shown
Plaintiff there was not a cause of action.
Having determined Plaintiff violated Rule 11, the question turns to what
sanction should be imposed that is limited to deter Plaintiff from filing
additional frivolous cases in federal court. See Fed. R. Civ. P. 11(c)(4).
18 See 4:24-cv-12-MW-MAF; 4:24-cv-17-WS-MAF, discussed supra at 2.
“While courts may take creative action to discourage hyperactive litigators,
they cannot construct blanket orders that completely close the courthouse
doors to those who are extremely litigious.” Cobble, 816 F. App'x 355, 360
(internal quotations omitted). Injunctive sanctions are permitted through the
All Writs Act, and while a litigant can be “severely restricted as to what he
may file,” it should be narrowly tailored to reach the desired result. Procup,
792 F.2d 1069, 1074 (11th Cir.1986); See also Foley v. Orange Cnty., No.
23-12740, 2024 WL 3517648, at *2 (11th Cir. July 24, 2024).
Given Plaintiff’s particularly vexatious history in such a short time
coupled with his continual disregard of court orders, the Court recommends
an injunctive sanction prohibiting Plaintiff from filing any future federal cases
relating to IRS ‘vouchers’ or IRS tax returns unless it is a new or novel claim
related to activities that have not been the subject of a previously filed action
and it is filed through an attorney licensed to practice in this jurisdiction. It is
further recommended Plaintiff be ordered to pay the clerk of court $400 as a
sanction prior to being allowed to file any further action. This injunction would
not prohibit Plaintiff from submitting filings in the following circumstances: in
any proceeding where he is the Defendant; in habeas proceedings; in a
proceeding related to conditions of confinement alleging imminent danger of
serious physical injury; and in any proceeding initiated on Plaintiff's behalf by
a licensed attorney.
The amount of the sanction is akin to the filing fee that a plaintiff must
pay if not granted in forma pauperis status. Plaintiff “has abused the privilege
of proceeding in forma pauperis. It is not too much to ask that he pay the
same amount now, prior to being allowed to file any further action.” Makere
v. Fitzpatrick, No. 4:22CV315-RH-ZCB, 2023 WL 3010539, at *1 (N.D. Fla.
Mar. 22, 2023), aff'd, No. 23-11231, 2024 WL 2152114 (11th Cir. 2024).
RECOMMENDATION
It is respectfully RECOMMENDED that this case be DISMISSED with
prejudice, and the Order adopting this Report and Recommendation should
direct the Clerk of Court to note on the docket that this case was dismissed
pursuant to 28 U.S.C. § 1915(g) and as frivolous. It is also RECOMMENDED
that Plaintiff be sanctioned under Rule 11 and the All Writs Act.
IN CHAMBERS at Tallahassee, Florida on August 27, 2024.
s/ Martin A. Fitzpatrick
MARTIN A. FITZPATRICK
UNITED STATES MAGISTRATE JUDGE
NOTICE TO THE PARTIES
Within fourteen (14) days after being served with a copy of this
Report and Recommendation, a party may serve and file specific
written objections to these proposed findings and recommendations.
Fed. R. Civ. P. 72(b)(2). A copy of the objections shall be served upon
all other parties. A party may respond to another party’s objections
within fourteen (14) days after being served with a copy thereof. Fed.
R. Civ. P. 72(b)(2). Any different deadline that may appear on the
electronic docket is for the Court’s internal use only and does not
control. If a party fails to object to the Magistrate Judge’s findings or
recommendations as to any particular claim or issue contained in this
Report and Recommendation, that party waives the right to challenge
on appeal the District Court’s order based on the unobjected-to factual
and legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636(b)(1)(C).