Opinion
Civil Action No. 17-1105 (UNA)
06-21-2017
HARVEY E. LARSON, Plaintiff, v. CLIFF CONGO, et al., Defendants.
MEMORANDUM OPINION
Pursuant to the Prison Litigation Reform Act ("PLRA"), in forma pauperis status does not relieve a prisoner plaintiff of his obligation to pay the filing fee in full. Asemani v. U.S. Citizenship & Immigration Servs., 797 F.3d 1069, 1072 (D.C. Cir. 2015). Rather than "pay the full filing fee at the time he brings suit . . . he can pay the filing fee in installments over time." Id. (citations omitted). However, certain prisoners cannot qualify for in forma pauperis status under the PLRA's "three strikes" rule:
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.Id. (quoting 28 U.S.C. § 1915(g)).
This plaintiff has accumulated more than three strikes. See Larson v. Runnels, No. 2:07 CV 1985 (E.D. Cal. Feb. 12, 2008) (adopting Magistrate Judge's Findings and Recommendation to dismiss for failure to state a claim upon which relief can be granted); Larson v. Runnels, No. 2:07 CV 806 (E.D. Cal. Feb. 4, 2008) (dismissed under 28 USC § 1915A(b)(1) for failure to state a claim); Larson v. Patton, No. 2:07 CV 01043 (E.D. Cal. Oct. 15, 2007) (dismissed for failure to state a claim); see also Larson v. Warden Gonzales, No. 1:08 CV 685 (E.D. Cal. Apr. 7, 2009) (denying leave to proceed in forma pauperis under 28 U.S.C. § 1915(g)); appeal dismissed, No. 09-15994 (9th Cir. Nov. 30, 2009).
Under these circumstances, plaintiff may proceed in forma pauperis only if he is "under imminent danger of serious physical injury." 28 U.S.C. § 1915(g). The Court "assess[es] the alleged danger at the time [plaintiff] filed his complaint," Mitchell v. Fed. Bureau of Prisons, 587 F.3d 415, 420 (D.C. Cir. 2009), and in so doing "construe[s] his complaint liberally and accept[s] its allegations as true," id. (citing Ibrahim v. District of Columbia, 463 F.3d 3, 6 (D.C. Cir. 2006)). None of the complaint's factual allegations demonstrate that plaintiff is in imminent danger of serious physical injury.
The Court will deny plaintiff's application to proceed in forma pauperis and dismiss this civil action without prejudice. The plaintiff may file a motion to reopen this case upon payment in full of the $350 filing fee.
An Order is issued separately. DATE: 6/21/2017
/s/_________
United States District Judge