Opinion
3:010CV23-MU-02.
January 22, 2010
ORDER
THIS MATTER is before the Court on Plaintiff's Complaint pursuant to 42 U.S.C. § 1983 (Doc. No. 1.) Plaintiff's Complaint originally was filed on December 8, 2009 in the Eastern District of North Carolina. However, by Order dated January 20, 2010, Plaintiff's Complaint was transferred to this district.
The Prisoner Litigation Reform Act ("PLRA") allows the court to dismiss a prisoner's action "if the prisoner has, on 3 or more occasions, while incarcerated or detained in any facility, brought an action or an appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or for failure 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). This subsection is known as the "three strikes" provision of the PLRA.
As was noted in the Court's Order of dismissal entered in case number 3:09cv552 (filed January 5, 2010 as document # 5), Plaintiff is no stranger to the Court as he has filed numerous lawsuits in this and other districts. Indeed, such Order concluded that Plaintiff previously had sustained at least three dismissals for frivolity. Inasmuch as Plaintiff has not demonstrated that he us under imminent danger of serious physical injury, the instant Complaint must be dismissed without prejudice to his right to re-file his action along with his payment of the $350.00 filing fee.
Accordingly, Plaintiff is barred from filing this action in forma pauperis, and the same will be dismissed without prejudice.
NOW, THEREFORE, IT IS HEREBY ORDERED:
1. That Plaintiff's IFP Application (document # 2) is DENIED;
2. That the instant Complaint is DISMISSED without prejudice to Plaintiff's right to pay the filing fee and re-file this action. 28 U.S.C. § 1915(g); and
3. That the Clerk shall send a copy of this Order to Plaintiff.