Opinion
Civil Action 1:22-CV-02836-SDG-CCB
07-25-2022
KIRSHA BROWN, Plaintiff, v. COCA COLA (SPRITE), Defendant.
FINAL REPORT AND RECOMMENDATION
CHRISTOPHER C. BLY, UNITED STATES MAGISTRATE IUDGE
Plaintiff Kirsha Brown, confined at Florida State Hospital in Chattahoochee, Florida, filed a civil action alleging a claim of copyright infringement. (Doc. 1.) Plaintiff did not pay the $350.00 filing and $52.00 administrative fees required for civil actions or submit an application for leave to proceed in forma pauperis.
Plaintiff is a pretrial detainee and therefore a “prisoner” under the Prison Litigation Reform Act (PLRA) because she is a “person . . . detained in any facility who is accused of . . . violations of criminal law.” 28 U.S.C. § 1915(h). In particular, Plaintiff, who has been committed to the care of the Florida Department of Children and Families at Florida State Hospital following a determination of incompetency to proceed to trial, has been accused of aggravated assault with a deadly weapon and battery. See Order, Florida v. Brown, Orange Cnty. Clerk of Cts., No. 2018-CF-006186-A-O, https://myeclerk.myorangeclerk.com/Cases/search (Dec. 13, 2021); id., docket sheet; see also Dent v. Bailey, No. 5:22-CV-52-TKW/MJF, 2022 WL 1005073, at *1 & nn.2-3 (N.D. Fla. Mar. 11, 2022) (applying the PLRA to a plaintiff confined at Florida State Hospital following a determination of incompetency to proceed to trial), report and recommendation adopted, 2022 WL 1003188 (N.D. Fla. Apr. 4, 2022); Cooper v. L. Libr. Supervisor, No. 4:16-CV-617-WS-GRJ, 2016 WL 7173890, at *2 (N.D. Fla. Oct. 12, 2016) (concluding that a plaintiff confined at Florida State Hospital following a determination of incompetency to proceed to trial was a prisoner and three-striker under the PLRA), report and recommendation adopted, 2016 WL 7175620 (N.D. Fla. Dec. 7, 2016).
Under the “three strikes” provision of the Prison Litigation Reform Act (PLRA), a prisoner may not bring a civil action in federal court while proceeding 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.28 U.S.C. § 1915(g); see also Lomax v. Ortiz-Marquez, 140 S.Ct. 1721, 1724 (2020) (holding that dismissal for failure to state a claim counts as a strike regardless of whether dismissal was with or without prejudice). A district court must dismiss without prejudice a prisoner's complaint “when the prisoner has three strikes but failed to pay the filing fee when the suit began.” White v. Lemma, 947 F.3d 1373, 1377 (11th Cir. 2020); accord Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (“[A]fter three meritless suits, a prisoner must pay the full filing fee at the time he initiates suit.”).
Plaintiff has at least three such prior dismissals while incarcerated or detained. See, e.g., Kirsha Brown v. Orange Cnty. Corr. Dep't, 699 Fed.Appx. 916 (11th Cir. 2017) (affirming dismissal for failure to state a claim); Kirsha Brown v. Orlando Police Dep't, No. 16-10477 (11th Cir. Feb. 17, 2017) (dismissing appeal as frivolous); Kirsha Brown v. Pub. Def.'s Off., No. 6:16-cv-00224-ACC-TS, Doc. 7 (M.D. Fla. Mar. 16, 2016) (dismissing for failure to state a claim); Krisha Brown v. Orange Cnty. Jail, No. 6:16-cv-00190-PGB-TS, Doc. 2 (M.D. Fla. Feb. 5, 2016) (dismissing for failure to state a claim). Plaintiff has not shown, in this copyright action, that she is in imminent danger of serious physical injury.
Accordingly, it is RECOMMENDED that Plaintiff be DENIED leave to proceed in forma pauperis and this action be DISMISSED without prejudice.
Dismissal of this case does not relieve Plaintiff of her obligation to file AO Form 121, as directed by the Clerk. See LR 3.4, NDGa. Failure to complete this form in a timely manner shall constitute additional grounds for dismissal for failure to comply with the Court's orders. See LR 41.3(A)(2), NDGa.
The Clerk is DIRECTED to terminate the referral to the undersigned.
IT IS SO RECOMMENDED.