United States District Court, S.D. Georgia, Savannah Division
August 11, 2014
UNITED STATES OF AMERICA, ex rel. LAFAYETTE WRIGHT, Plaintiff,
PHILIP A. HASTY, TROY CROUSE, And McCALLAY RAYMER, LLC, Defendants.
REPORT AND RECOMMENDATION
G.R. SMITH Magistrate Judge.
LaFayette Wright, who is detained at the Chatham County Detention Center, has submitted for filing a qui tam action under the False Claims Act (though he uses a standard 42 U.S.C. § 1983 form complaint). (Doc. 1 at 5.) He seeks to proceed in forma pauperis ("IFP"). (Doc. 2.) He is barred from doing so, however, by the "three strikes" provision of 28 U.S.C. § 1915(g).
Plaintiffs are generally required to pay a filing fee in order to institute a civil action in a federal district court. 28 U.S.C. § 1914. Indigent prisoners may avoid prepayment of the filing fee under 28 U.S.C. § 1915. In order to proceed IFP, however, prisoners must surmount § 1915(g), which states:
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.
28 U.S.C. § 1915(g). The Eleventh Circuit has held that a prisoner barred from proceeding IFP due to the " three strikes " provision in § 1915(g) must pay the complete $350 filing fee when he initiates suit. Vanderberg v. Donaldson , 259 F.3d 1321, 1324 (11th Cir. 2001). Therefore, the proper procedure for a district court faced with a prisoner who seeks IFP status but is barred by the " three strikes" provision is to dismiss the complaint without prejudice. Dupree v. Palmer , 284 F.3d 1234, 1236 (11th Cir. 2002).
Wright is a serial filer who long ago accumulated three or more dismissals on grounds of frivolity, maliciousness, or failure to state a claim. See Wright v. Blake , No. CV400-084, doc. 9 (S.D. Ga. June 23, 2000) (dismissing case as malicious under § 1915A); Wright v. Blake , No. CV400-226, doc. 3 (S.D. Ga. Sept. 13, 2000) (dismissing case as frivolous and for failure to state a claim); Wright v. Ringle , No. CV401-164, docs. 9, 12 (S.D. Ga. Aug. 1, 2001) (dismissal for failure to state a claim). This should hardly come as a surprise to Wright, since he has been advised on multiple occasions that he is barred from proceeding IFP without showing that he is in imminent danger of serious harm. Wright v. Hines , No. CV406-188, doc. 3 (S.D. Ga. Aug. 10, 2006) (advising Wright that he is a three-striker barred from proceeding IFP absent a showing that he is in imminent danger of serious physical injury); Wright v. Galin Mortgage Lending , No. CV406-189, doc. 3 (S.D. Ga. Aug. 2, 2006) (same); Wright v. Powell , No. CV403-112, doc. 3 (S.D. Ga. June 18, 2003) (same); Wright v. Ringle , No. CV401-211, doc. 4 (S.D. Ga. Sept. 25, 2001) (same). The only harm alleged here is a financial loss to the United States Department of Housing. (Doc. 1 at 5.) Hence, he has not come close to making any " specific allegations of present imminent danger that may result in serious physical harm. " Skillern v. Jackson , 2006 WL 1687752 at *2(S.D. Ga. June 14, 2006) (citing Brown v. Johnson , 387 F.3d 1344, 1349 (11th Cir. 2004)).
As Wright is barred by § 1915(g), his complaint (doc. 1) should be dismissed. Even if Wright paid the filing fee, the Court would lack subject matter jurisdiction to hear a qui tam claim brought on behalf of the United States by a pro se litigant. Every court that has considered the matter has held that False Claims Act relators must comply with the general rule prohibiting nonlawyers from representing other litigants. E.g. , Timson v. Sampson , 518 F.3d 870, 873-74 (11th Cir. 2008). While most prisoner suits barred by § 1915(g) should be dismissed without prejudice, because there is no possible jurisdictional basis for Wright's pro se action, his case should be DISMISSED WITH PREJUDICE.
SO REPORTED AND RECOMMENDED.