Opinion
Civil Action 24-0461 (UNA)
04-17-2024
RAYMOND AIGBEKAEM, Fed.Reg. # 94655-379, Petitioner, v. MERRICK GARLAND, et al., Respondents.
MEMORANDUM OPINION
TANYA S. CHUTKAN UNITED STATES DISTRICT JUDGE
This matter is before the Court on consideration of Raymond Aigbekaen's Motion to Proceed In Forma Pauperis (ECF No. 2) and pro se “Petition for Writ of Mandamus/Motion to Compel Specific Performance” (ECF No. 1). The Court DENIES the in forma pauperis application because Petitioner has run afoul of the Prison Litigation Reform Act's “three strikes” rule:
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); see Fourstar v. Garden City Grp., Inc., 875 F.3d 1147, 1149 (D.C. Cir. 2017) (“[A] dismissal of a prisoner's lawsuit for failure to state a claim, or as frivolous or malicious, is commonly referred to as a strike.”); see also In re Kissi, 652 F.3d 39, 41-42 (D.C. Cir. 2011) (per curiam) (applying “three strikes” provision to petition for writ of mandamus).
Petitioner has accumulated the requisite number of “strikes.” See Aigbekaen v. Warden of FCI Danbury, No. 3:21-cv-1526 (JAM), 2022 WL 1658819, at *4 (D. Conn. May 25, 2022) (dismissed without prejudice under 28 U.S.C. § 1915A(b)(1)); Aigbekaen v. Apple, Inc., No. 20-cv-1603-JAH-LL, 2020 WL 6271027, at *3 (S.D. Cal. Oct. 26, 2020) (dismissed sua sponte as frivolous pursuant to 28 U.S.C. § 1915A(b)(1); Aigbekaen v. Field Museum of Natural History, No. 20-cv-04037 (N.D. Ill. Oct. 2, 2020) (dismissed as frivolous), appeal dismissed, No. 20-3452 (7th Cir. Feb. 18, 2021); Aigbekaen v. Homewood Suites by Hilton, No. 1:20-cv-2167 (D. Md. July 31, 2020) (dismissed without prejudice under Heck v. Humphrey, 512 U.S. 477, 486-87 (1994)), aff'd, 841 Fed.Appx. 628 (4th Cir. Apr. 2, 2021) (per curiam); Aigbekaen v. Maddox, No. 8:19-cv-01658 (D. Md. Feb. 6, 2020) (dismissed without prejudice under Heck); Aigbekaen v. Barr, No. 8:20-cv-00169 (D. Md. Feb. 6, 2020) (dismissed complaint against defendants immune from suit, for failure to state claims under 42 U.S.C. § 1983, and under Heck).
In this circumstance, Petitioner may proceed in forma pauperis only if he qualifies under the “imminent danger” exception. See Pinson v. U.S. Dep't of Justice, 964 F.3d 65, 68 (D.C. Cir. 2020). The Court “assess[es] . . . danger at the time plaintiff filed his complaint and thus look[s] only to the documents attesting to the facts at that time, namely his complaint and the accompanying motion for [in forma pauperis] status.” Mitchell v. Fed. Bureau of Prisons, 587 F.3d 415, 420 (D.C. Cir. 2009). There must be “a nexus between the harms [a prisoner] allege[s] and the claims [he] bring[s].” Pinson, 964 F.3d at 71. Here, Petitioner alleges he is denied adequate medical care for myriad conditions, yet none puts Petitioner in imminent danger of serious bodily injury.
The Court notes that Petitioner recently has filed a substantially similar mandamus petition, see Aigbekaen v. Biden, No. 1:23-cv-3079 (D. Colo. Jan. 3, 2024) (dismissed without prejudice for failure to prosecute and cure deficiencies as directed), and civil actions in three other district courts regarding medical treatment, see Aigbekaen v. United States, No. 1:24-cv-820 (D. Colo. filed Mar. 25, 2024); Aigbekaen v. Peters, No. 1:24-cv-0312 (D. Md. Apr. 5, 2024) (transferring action to District of Colorado); Aigbekaen v. No Named Defendant, No. 1:23-cv-3439 (D. Colo. Feb. 8, 2024) (dismissed without prejudice for failure to prosecute).
Accordingly, it is hereby
ORDERED that Petitioner's Motion to Proceed In Forma Pauperis [2] is DENIED under 28 U.S.C. § 1915(g); it is further
ORDERED that the petition [1] is DISMISSED without prejudice; and it is further
ORDERED that this civil action is DISMISSED without prejudice. If Petitioner wishes to proceed, he may file a motion to reopen this action and he must pay the filing fee in full.
The Clerk of Court shall TERMINATE this action.
SO ORDERED.