Opinion
1:22CV541
08-15-2022
(CHIEF) COL. MICHAEL S. OWL FEATHER-GORBEY, Plaintiff, v. UNKNOWN NAME GOVERNOR STATE OF N.C., et al., Defendant(s).
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
L. PATRICK AULD UNITED STATES MAGISTRATE JUDGE
Plaintiff, a federal prisoner housed in Illinois, submitted a civil rights action pursuant to 42 U.S.C. § 1983 and the Federal Tort Claims Act. The form of the Complaint is such that a serious flaw makes it impossible to further process the Complaint. The problem is:
1. Plaintiff seeks to proceed in forma pauperis, but pursuant to the Prison Litigation Reform Act, Plaintiff may no longer proceed in forma pauperis in this Court unless he is under imminent danger of serious physical injury. The Act provides that:
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). As noted in the Complaint (Docket Entry 2, § VIII) and by other courts, see, e.g., Feather-Gorbey v. Meyer, 3:17-CV-134, 2018 WL 4677861, at *2-3 (N.D. W.Va. May 17, 2018) (unpublished), report and rec. adopted, 2018 WL 3064276 (N.D.W.Va. June 21, 2018) (unpublished), Plaintiff has had three or more prior cases dismissed for being frivolous, malicious, or failing to state a claim upon which relief can be granted. Therefore, he must pay the $402.00 filing fee unless he alleges facts demonstrating that he is under imminent danger of serious physical injury. Plaintiff does not include any allegations in the current Complaint demonstrating imminent danger of serious physical injury. Therefore, Plaintiff does not allege sufficient facts to overcome the three strikes bar.
Consequently, the Complaint should be dismissed, but without prejudice to Plaintiff filing a new complaint, on the proper § 1983 forms and accompanied by the $402.00 filing fee. If Plaintiff seeks to do so, he may seek the proper forms for filing a pro se complaint from the Clerk.
In forma pauperis status is granted for the sole purpose of entering this Order and Recommendation.
IT IS THEREFORE ORDERED that In forma pauperis status is granted for the sole purpose of entering this Order and Recommendation.
IT IS RECOMMENDED that this action be filed and dismissed sua sponte without prejudice to Plaintiff filing a new complaint, on the proper § 1983 forms and the $402.00 filing fee, which corrects the defects cited above.
This, the 15th day of August, 2022.