Opinion
CASE NO. 4:07-cv-00201-MP-AK.
February 26, 2008
ORDER
This matter is before the Court on Doc. 17, Report and Recommendation of the Magistrate Judge, recommending that this case be dismissed under 28 U.S.C. § 1915(g). The Magistrate Judge filed the Report and Recommendation on Tuesday, January 15, 2008. The parties have been furnished a copy of the Report and have been afforded an opportunity to file objections. Pursuant to Title 28, United States Code, Section 636(b)(1), this Court must make a de novo review of those portions to which an objection has been made.
In the Report, the Magistrate states that although Plaintiff was erroneously granted leave to proceed in forma pauperis, because Plaintiff has three strikes under 28 U.S.C. § 1915(g), this case must be dismissed without prejudice for failure to pay the filing fee. In his objections, Plaintiff states that at the time he filed this case, he was under imminent danger of serious physical harm. The Magistrate rejects this claim that Plaintiff's allegations of retaliation, a false disciplinary report, and denial of due process bring him within the "imminent danger" exception. It is clear from the complaint that the actions Plaintiff complains of occurred in 2006 at a different correctional institution than the one where Plaintiff is presently incarcerated. The fact that prison guards are transferred between prisons, and that guards from different prisons know each other does not suffice to meet the requirement of imminent danger. Therefore, Plaintiff was required to pay the filing fee in full at the time he filed his complaint
Because Plaintiff is not in imminent danger of serious injury, the Court agrees with the Magistrate that Plaintiff is not entitled to proceed in forma pauperis under 28 U.S.C. § 1915, and that Plaintiff had to pay the filing fee when he filed his complaint. Therefore, having considered the Report and Recommendation, and the objections thereto, I have determined that it should be adopted. Accordingly, it is hereby
ORDERED AND ADJUDGED:
1. The Magistrate Judge's Report and Recommendation, Doc. 17, is adopted and incorporated by reference in this order.
2. This case is DISMISSED without prejudice under 28 U.S.C. § 1915(g).DONE AND ORDERED.