Librun
v.
Washburn

This case is not covered by Casetext's citator
United States District Court, M.D. Florida, Ft. Myers DivisionNov 4, 2008
Case No. 8:08-cv-2161-T-33MAP. (M.D. Fla. Nov. 4, 2008)

Case No. 8:08-cv-2161-T-33MAP.

November 4, 2008


ORDER


Plaintiff, an inmate at the Hernando County Jail, (HCJ) Brooksville, Florida, who is proceeding in forma pauperis and pro se, initiated this action by filing a 42 U.S.C. § 1983 civil rights complaint on October 28, 2008. The Court has undertaken a preliminary screening of Plaintiff's complaint in accord with 28 U.S.C. § 1915A. After doing so, the Court concludes that, for the following reasons, the claims in the complaint must be bifurcated and the complaint must be dismissed without prejudice to Librun's refiling his complaint(s), in two new cases.

Librun is an "I.C.E./DHS" detainee who was transferred from Glades County Detention Center to the Hernando County Jail per "I.C.E./DHS" contract on September 24, 2008. Librun claims that HCJ is preventing his mailing legal documents and refusing his requests to file grievances. He also claims that he received a "disciplinary action" during which he was not allowed to call witnesses, and that, as a result of the disciplinary action, was placed in confinement.

Librun further claims that the Defendant HCJ correctional officers and "Nurse Betty" beat him, subjected him to excessive use of force, refused him medical care, and issued death threats.

Discussion

On April 26, 1996, the President signed into law the Prison Litigation Reform Act (hereinafter PLRA) which amended 28 U.S.C. § 1915 by adding the following new subsection:

(g) 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).

Section 1915(g) requires this Court to consider prisoner actions dismissed before, as well as after, the enactment of the PLRA. Green v. Nottingham, 90 F.3d 415, 420 (10th Cir. 1996).

This Court takes judicial notice of the Report and Recommendation entered by Magistrate Judge Sorrentino in the United States District Court for the Southern District of Florida recommending that Plaintiff Librun's case no. 98-2474-Civ-Lenard be dismissed because Plaintiff had incurred "three strikes" by filing 27 known cases that met the criteria of the statute. (A copy of the Report and Recommendation is attached). On December 9, 1998, United States District Judge Lenard dismissed Librun's case "for the reasons stated in the Report of the Magistrate Judge and upon independent review of the file."

Because Plaintiff Librun had three or more prior dismissals, his application to proceed in forma pauperis will be denied as to all claims other than his claims that Defendant HCJ correctional officers and "Nurse Betty" beat him, subjected him to excessive use of force, refused him medical care, and issued death threats.

Accordingly, the Court orders:

1. That Plaintiff's complaint is dismissed, without prejudice to his filing a new civil rights complaint form, in a new case, with a new case number, and paying the full $350.00 filing fee as to his claims that HCJ is preventing his mailing legal documents and refusing his requests to file grievances; and his claim that he received a "disciplinary action" during which he was not allowed to call witnesses, and as a result of the disciplinary action, was placed in confinement.

2. That Plaintiff may file a new civil rights complaint, in a new case, with a new case number, along with a new motion to proceed in forma pauperis as to his claims that HCJ correctional officers and Nurse Betty subjected him to beatings, excessive use of force, refusal of medical care, and death threats.

The Clerk is directed to enter judgment against Librun and to close this case.

ORDERED at Tampa, Florida.PRELIMINARY REPORT OF MAGISTRATE JUDGE

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 98-2474-Civ-LENARD MAGISTRATE JUDGE SORRENTINO JEAN HENRIQUEZ LIBRUN, : et al., : Plaintiffs, : v. : HARRY K. SINGLETARY, et al., : Defendants. _______________________________________: The incarcerated pro se plaintiff Jean Henriquez Librun is a multiple filer, having filed the following known cases:

1. Librun v. Hernandez
94-596-Civ-Marcus
§ 1983; Events at Union C.I.
Transferred to Middle District 4/9/94.
2. Librun v. Snyder
94-1685-Civ-Graham
§ 1983; Suit against judge.
Dismissed § 1915(d) 11/22/94.
3. Librun v. Mera, et al.
94-1759-Civ-Moreno
§ 1983; Beating Dade County Jail Bus to SFRC.
Jury trial; judgment for defs as matter of law 3/22/96.
4. Librun v. Gaer, et al.
94-2185-Civ-Nesbitt
§ 1983; Suit against lawyer and Judge.
Dismissed § 1915(d) 1/6/95.
5. Librun v. Singletary, et al.
94-14232-Civ-Paine
§ 1983; Racial discrimination Martin CI.
Summary Judgment for defendants 6/12/96.
6. Librun v. Mitcham, et al.
94-14262-Civ-Roettger
§ 1983; Beating Martin CI 11/12/94; 5 defs.
Sum Jdg for defs 6/19/96.
7. Librun v. C.D. Armstrong, et al.
94-2655-Civ-Marcus
§ 1983; Brutality Martin CI 11/17, 23/94 and 12/1/94; 5 defs.
Defs' motions to dismiss granted 7/17/96.
8. Librun v. Snyder, et al.
94-2656-Civ-Moreno
§ 2254; Attack on two Dade convictions.
Dismissed; lack of exhaustion 3/31/95.
9. Librun v. Porter, et al.
95-14005-Civ-Paine
§ 1983 Beating Martin CI; 12/14/94; 8 defs.
Dismissed § 1915(d) 5/21/96.
10. Librun v. Bryant, et al.
95-14006-Civ-Davis
§ 1983; Beating Martin CI; 12/16/94; 12 defs.
Verdict for defs 11/4/97.
11. Librun v. Osuch, et al.
95-14007-Civ-Davis
§ 1983; Beating Martin CI; 12/15/94; 4 defs.
Sum Jdg for defs 5/30/96.
12. Librun v. Singletary, et al.
95-14011-Civ-Paine
Mandamus for return of legal papers.
Dismissed § 1915(d) 2/3/95.
13. Librun v. Galantes
95-180-Civ-Davis
§ 1983; Suit against attorney.
Dismissed § 1915(d) 2/24/95.
14. Librun v. Smith, et al.
95-14178-Civ-Ryskamp
§ 1983; Retaliation for litigation Martin CI; 9 defs.
Dismissed 8/26/97.
15. Librun v. Snyder, et al.
95-14179-Civ-Ryskamp
§ 1983; Retaliation for litigation and brutality, Martin CI; 5/24 and 5/31/95; 8 defs.
Dismissed 8/26/97.
16. Librun v. Armstrong
95-14180-Civ-Paine
§ 1983; Retaliation for litigation and brutality, Martin CI; 16 defs.
Pending.
17. Librun v. Garcia, et al.
95-14181-Civ-Roettger
§ 1983; Harassment Martin CI; 3/1/95.
Defs' motion to dismiss granted 3/29/96.
18. Librun v. Haskins, et al.
95-14182-Civ-Moore
§ 1983; Beating Martin CI 6/14/95; 23 defs.
Sum Jdg for defs 9/30/97.
19. Librun v. Conrad, et al.
95-14183-Civ-Davis
§ 1983; Beating; denial medical attention Martin CI 5/9/95; 10 defs.
Pending.
20. Librun v. Barton, et al.
95-14184-Civ-Davis
§ 1983; Beating and denial of medical care Martin CI 11/12/94; 6 defs.
Dismissed § 1915(d) 9/25/95.
21. Librun v. Singletary, et al.
95-1902-Civ-King
§ 2254; Attack on two Dade convictions Denied 2/22/96.
22. Librun v. State
95-2411-Civ-King
Mandamus to force Dade Court to rule.
Dismissed; lack of jurisdiction 12/14/95.
23. Librun v. Third DCA
96-14022-Civ-Moore
Mandamus to force Dade Court to rule or Third DCA to change ruling.
Dismissed; lack of jurisdiction 1/31/96.
24. Librun v. Braddy, et al.
96-14027-Civ-Roettger
§ 1983; Retaliation Dade County Jail.
Dismissed; lack of prosecution 3/20/97.
Appeal No. 97-4632 dismissed 7/31/97.
25. Librun v. State
96-2721-Civ-Kehoe
§ 2254; Attack on two Dade convictions.
Dismissed for lack of authorization for successive petition; 3/28/97.
26. Librun v. Bryant, et al.
97-4389-Civ-Gold
§ 2241; Seeks records.
Dismissed as moot 1/13/98.
27. Librun v. Gardiner, et al.
98-2474-Civ-Lenard
§ 1983; Miscellaneous claims.
Pending.

This latest complaint is 150 handwritten pages and names 150 defendants, including the Governor and officials from four separate penal institutions.

Pursuant to 28 U.S.C. § 1915(g), enacted April 26, 1996, no prisoner may bring a civil action or appeal a judgment in a civil action in forma pauperis if the prisoner has, on three 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 was frivolous, malicious, or failed to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.

The constitutionality of this section has been comprehensively explored and upheld by the Eleventh Circuit Court of Appeals,Rivera v. Allin, 144 F.3d 719 (11 Cir. 1998). There the Court held that the new "three strikes" IFP provision does not violate the First Amendment right of access to the court; the separation of judicial and legislative powers; the Fifth Amendment right to due process of law; or the Fourteenth Amendment right to equal protection, as incorporated through the Fifth Amendment. Moreover, the Court held that courts in this circuit may properly count as strikes cases dismissed on the statutory grounds prior to April 26, 1996.

As is clear from the above list, Librun is an able and experienced litigant. In an attempt to avoid dismissal of this complaint as successive, he has had three fellow prisoners also sign the complaint as plaintiffs. None of the four has paid the Clerk's filing fee of $150.00, and only Librun has filed a motion to proceed in forma pauperis.

The three plaintiffs other than Librun have been separately ordered to either pay the filing fee or file a motion to proceed in forma pauperis with supporting financial documentation.

Librun himself has clearly filed three or more cases which fit the criteria of this statute. It does not appear that Librun is under imminent danger of serious physical injury and it is therefore recommended that this case be dismissed as to Jean Henriquez Librun pursuant to 28 U.S.C. § 1915(g).

Objections to this report may be filed with the District Judge within ten days of receipt of a copy of the report.