The opinion of the court was delivered by: Slomsky, J.
Before the Court is Petitioner's Application for Prisoners to Proceed in District Court Without Paying Fees or Costs. (Doc. No. 3). On March 19, 2010, Petitioner,*fn1 an inmate at the Columbia Correctional Facility in Lake City, Florida, filed a Motion for Leave to Proceed In Forma Pauperis. (Doc. No. 1). On May 3, 2010, this Court issued an Order denying Plaintiff's Motion without prejudice (Doc. No. 2) because Petitioner had claimed ownership of substantial assets in his financial affidavit as well as income on the part of his spouse, both of which disqualified him from receiving in forma pauperis status. The Court directed that Petitioner could re-file his Motion to Proceed In Forma Pauperis using the appropriate forms to be provided to him by the Clerk's Office if his current motion did not accurately reflect his available financial resources. (Doc. No. 2, at 1, n.1). On May 21, 2010, Petitioner filed the instant Application for Prisoners to Proceed in District Court Without Paying Fees or Costs, and attached the required statement of his prisoner trust fund account. (Doc. No. 3).
For the following reasons, Petitioner's Application to Proceed In Forma Pauperis will be denied. While he was incarcerated, Petitioner has on three or more prior occasions brought an action or appeal that was dismissed on the ground that it is frivolous or fails to state a claim upon which relief may be granted. Moreover, Petitioner does not currently allege that he is in imminent danger of serious physical injury. Furthermore, Petitioner's complaint, styled a Writ of Mandamus, will be dismissed with prejudice as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
In the Prison Litigation Reform Act of 1995, Congress amended the minimum requirements to be met by indigent prisoners who file civil actions. In re: Alea, 286 F.3d 378, 380 (6th Cir. 2002). Pursuant to 28 U.S.C. § 1915 (b)(1), the traditional waiver of filing fees for prisoners with pauperis status was replaced with a requirement that all prisoners pay the required filing fee with periodic deductions from their prisoner account. Id. In addition, § 1915(g) imposes a restriction on prisoner litigants with a history of filing frivolous or malicious civil actions, and provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section [proceedings in forma pauperis] 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.
As a result, § 1915(g) "forbids almost all attempts by indigent prisoners to gain access to the federal courts in civil actions if they have had three or more prior dismissals as described in that statute." Id. (internal citation and quotation marks omitted).*fn2
Section 1915 further directs the court to screen complaints filed in forma pauperis to determine if they are frivolous or if they fail to state a claim upon which relief may be granted. McAllen v. Attic Away from Home, 2000 WL 1752618 (D. Del. Nov. 17, 2000). Pursuant to § 1915(e)(2)(B)(i) and (ii), the court shall dismiss a case brought under the section, "notwithstanding any filing fee, or any portion thereof, that may have been paid," if the court determines that "the action or appeal . . . is frivolous or malicious . . . [or] fails to state a claim on which relief may be granted."
Petitioner has brought three or more actions that have been dismissed for the reasons listed in § 1915(g), and thus the "three strikes provision" applies to him. Furthermore, Petitioner's instant complaint, styled a writ of mandamus, does not allege that Petitioner is in imminent danger of serious physical injury. Therefore, Petitioner will not be permitted to proceed in forma pauperis in this action, and his action will be dismissed without prejudice. Finally, Petitioner's claims will be dismissed with prejudice under § 1915(e)(2)(B)(i) and (ii) as frivolous.
In order for Plaintiff to fall under the "three strikes provision" of § 1915(g) which prohibits filing civil actions in forma pauperis, he must have filed three cases which were previously dismissed because the action was frivolous, malicious or failed to state a claim. Andrews v. King, 398 F.3d 1113, 1116, 1120 (9th Cir. 2005). Plaintiff has had at least three civil actions dismissed as frivolous or for failure to state a claim under 28 U.S.C. § 1915(e), which satisfies the three strikes provision of § 1915(g).
First, Petitioner has already been found to have three strikes by another federal district court. In Civil Action No. 03-cv-53, filed in the United States District Court for the Middle District of Florida, Jacksonville Division, the District Court held Petitioner had three or more qualifying dismissals. (Case No. 03-53, Doc. No. 3, at 2). The District Court took judicial notice of Civil Action No. 99-1182, discussed below, wherein Petitioner's claim was dismissed with prejudice for failure to state a claim upon which relief may be granted. (Id.) The District Court also took judicial notice of five filings "brought by [Petitioner] that were dismissed because [Petitioner] lied under penalty of perjury about the existence of prior lawsuits: (1) 99-59-Civ-J-20C; (2) 99-1085-Civ.-J-20A; (3) 99-1114-Civ-J-21B; (4) 3:00-civ-148-J-20A; and, (5) 3:02-cv-748-J-25TEM." (Id.) The District Court reasoned that "[t]he Eleventh Circuit has recognized that a dismissal for lying under penalty of perjury about prior lawsuits 'is precisely the type of strike that Congress envisioned when drafting section 1915(g).'" (Id. (quoting Rivera v. Allin, 144 F.3d 719, 731 (11th Cir. 1998)). Accordingly, Petitioner's complaint was dismissed without prejudice, his in forma pauperis application was denied, and he was instructed that he could initiate a new action only by paying the full filing fee. (Id.)
Although the District Court's ruling in Civil Action No. 03-cv-53 could suffice as evidence of Petitioner's "three strikes," this Court will independently review three additional cases wherein Petitioner's claims were dismissed on grounds that they were ...