Opinion
No. 2:15-cv-2011 CKD P
11-24-2015
PAUL WINFIELD, Plaintiff, v. HAQUE, Defendant.
ORDER
By an order filed October 6, 2015, plaintiff was ordered to file an in forma pauperis application or pay the filing fee for this action within thirty days. (ECF No. 6.) He was cautioned that failure to do so would result in dismissal of this action. (Id.) The thirty day period has now expired, and plaintiff has neither filed an IFP application nor paid the filing fee. Instead, he has filed a document stating that he cannot obtain the IFP paperwork, but seeks IFP status nonetheless because he "can't afford the filing fee." (ECF No. 9.)
Court records indicate that plaintiff has been deemed a "Three Strikes" inmate under 28 U.S.C. § 1915(g). In Winfield v. Rappoport, No. 2:12-cv-2387 WBS AC, the district judge adopted findings and recommendations denying plaintiff IFP status because he had filed three or more frivolous actions. (Id., ECF Nos. 5 & 8.) The case was subsequently dismissed due to plaintiff's failure to pay the filing fee. (Id., ECF No. 13.)
The magistrate found the following actions had been dismissed for failure to state a claim: Winfield v. Davis, No. 2:03-cv-0101 FCD PAN P; Winfield v. Katcher, No. 2:03-cv-2064 GEB GGH P; Winfield v. Downing, No. 2:06-cv-0391 GEB JFM P; and Winfield v. Suliven, No. 2:07-cv-0828 LKK EFB P. (Id., ECF No. 5.) Having reviewed these actions, the undersigned concurs that they constitute "strikes" under § 1915(g). --------
28 U.S.C. § 1915 permits any court of the United States to authorize the commencement and prosecution of any suit without prepayment of fees by a person who submits an affidavit indicating that the person is unable to pay such fees. However,
[i]n 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).
Here, plaintiff alleges that defendant is forcing him to take psychotropic drugs to which he is allergic. (ECF No. 1.) In Winfield v. Rappoport, in which plaintiff claimed defendants were trying to kill him with psychotropic drugs, the magistrate noted that "similar allegations involving his psychotropic medication have been the basis of many of plaintiff's complaints over the last ten years against various defendants, though plaintiff has yet to be murdered by defendants due to medication as alleged in the instant complaint." (Id., ECF No. 5.) As in that case, the undersigned finds that plaintiff has not credibly alleged "imminent danger of serious physical injury" under § 1915(g).
In light of the above, plaintiff will be granted an additional fourteen days to pay the filing fee in this action; otherwise, it will be dismissed.
IT IS HEREBY ORDERED that plaintiff shall pay the $400 filing fee no later than fourteen days from the date of this order. Failure to comply with this order will result in dismissal of this action. Dated: November 24, 2015
/s/_________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE 2 / winf2011.threestrikes