Opinion
22-3212-JWL-JPO
09-27-2022
ANTONIO ALEXANDER MCGEE, Plaintiff, v. FNU RULE, Defendant
MEMORANDUM AND ORDER
JOHN W. LUNGSTRUM UNITED STATES DISTRICT JUDGE
This matter is a civil rights action filed under 42 U.S.C. § 1983. Plaintiff, a prisoner in state custody, proceeds pro se. He brings this action against a correctional officer at the Lansing Correctional Facility, alleging that on September 13, 2022, the defendant conducted a search of his cell to retrieve a missing tablet computer and used this search to “flip [the] cell” and go through his property. Plaintiff seeks damages.
Plaintiff has not submitted the filing fee, and the court finds he is subject to the “three-strikes” provision under 28 U.S.C. § 1915(g). Court records establish that plaintiff “has, on 3 or more prior occasions, while incarcerated . . ., 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.” Accordingly, he may proceed in forma pauperis only if he establishes a threat of imminent danger of serious physical injury. Id. The court has examined the complaint and attachments and finds no showing of imminent danger of serious physical injury.
The qualifying dismissals are: (1) 20-3131-SAC, McGee v. Doe (dismissed for failure to state a claim for relief); (2-3) 20-3085-SAC, McGee v. Corizon (same), affirmed on appeal, McGee v. Corizon, (20-3111, 10th Cir. Oct. 14, 2020)(finding the appeal frivolous and noting that plaintiff now has four strikes).
Accordingly, pursuant to § 1915(g), plaintiff may not proceed in forma pauperis in this civil action. Plaintiff is given time to pay the full $402.00 district court filing fee to the clerk of the court. If he fails to pay the fee within the prescribed time, the complaint will be dismissed for failure to pay the filing fee required by 28 U.S.C. § 1914.
If a person is not granted in forma pauperis status under § 1915, the fee to file a non-habeas civil action includes the $350.00 fee required by 28 U.S.C. § 1914(a) and a $52.00 general administrative fee pursuant to § 1914(b) and the District Court Miscellaneous Fee Schedule prescribed by the Judicial Conference of the United States.
IT IS THEREFORE ORDERED BY THE COURT that plaintiff is granted to and including October 27, 2022, to submit the $402.00 filing fee. The failure to submit the fee by that date will result in the dismissal of this matter without prejudice and without additional prior notice.
IT IS SO ORDERED.