Perry v. United States

Full title: GERALD ALLEN PERRY, Plaintiff-Appellant, v. UNITED STATES…

Court: United States Court of Appeals for the Federal Circuit

Date published: Mar 12, 2014

2013-5120 (Fed. Cir. Mar. 12, 2014)

Opinion

2013-5120

03-12-2014

GERALD ALLEN PERRY, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.

GERALD ALLEN PERRY, of Iowa Park, Texas, pro se. MARTIN M. TOMLINSON, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for defendant-appellee. With him on the brief were STUART F. DELERY, Assistant Attorney General, BRYANT G. SNEE, Acting Director, and BRIAN A. MIZOGUCHI, Assistant Director.

PER CURIAM

NOTE: This order is nonprecedential.

Appeal from the United States Court of Federal Claims in No. 13-CV-0332, Judge Lynn J. Bush.

ORDER

GERALD ALLEN PERRY, of Iowa Park, Texas, pro se.

MARTIN M. TOMLINSON, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for defendant-appellee. With him on the brief were STUART F. DELERY, Assistant Attorney General, BRYANT G. SNEE, Acting Director, and BRIAN A. MIZOGUCHI, Assistant Director.

Before RADER, Chief Judge, PROST, and CHEN, Circuit

Judges.

PER CURIAM.

Mr. Gerald Allen Perry is incarcerated. He filed an appeal in this court and previously requested to proceed in forma pauperis. That request was denied by an order dated November 27, 2013. In that order, the court directed the custodian of Mr. Perry's prison account to forward the filing fee to the court to be paid in installments in accordance with 28 U.S.C. § 1915.

In a separate paper, Mr. Perry admitted that he has filed four meritless actions in federal court while he has been incarcerated. Given this litigation history, the law is clear that Mr. Perry "shall" not bring "a civil action or appeal a judgment in a civil action or proceeding under [§ 1915]" unless he "is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g).

We have considered Mr. Perry's statement that he is in such imminent danger, but find it without merit. Accordingly, Mr. Perry does not qualify to proceed under § 1915. The November 27, 2013 order of the court is amended to the extent that it authorized him to cover the filing fee through a statutory payment plan. We are without authority to consider Mr. Perry's appeal without the full payment of his filing fee.

Upon consideration thereof,

IT IS ORDERED THAT:

Mr. Perry's appeal is dismissed for failure to pay the proper filing fee.

FOR THE COURT

__________

Daniel E. O'Toole

Clerk of Court