Opinion
22-3298-JWL
02-09-2023
MEMORANDUM AND ORDER
John W. Lungstrum United States District Judge
Plaintiff Melvin L. Shields is a state prisoner housed at Hutchinson Correctional Facility in Hutchinson, Kansas. He initiated this pro se 42 U.S.C. § 1983 action on December 6, 2022 by filing a complaint and a motion to proceed in forma pauperis. (Docs. 1 and 2.) After an initial review, the Court determined that Plaintiff has, on at least three prior occasions, brought an action in this Court that was dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted. Thus, he is subject to the “three-strikes” provision of 28 U.S.C. § 1915(g), and he may proceed in forma pauperis only if he establishes a threat of imminent danger of serious physical injury. See 28 U.S.C. § 1915(g).
On December 7, 2022, the Court issued an order explaining the three-strikes rule, identifying the cases that constitute Plaintiff's prior strikes, and informing him that his complaint and the attachments thereto do not establish a threat of imminent danger of serious physical injury. (Doc. 3.) The Court therefore denied Plaintiff's motion to proceed in forma pauperis and ordered him to pay the full filing fee to the Court on or before January 9, 2023 or the matter would be dismissed without additional prior notice. Id. at 2-3.
On December 16, 2022, Plaintiff filed a notice of interlocutory appeal from the order, asserting that two of the three cases identified as strikes were cases filed not by him, but by “other individuals with the same last name” and should not have been assessed against Plaintiff. (Doc. 4.) The Tenth Circuit docketed the appeal and ordered Plaintiff to show cause why he should not be required to prepay the entire appellate filing fee as required by 28 U.S.C. § 1915(g). See Shields v. City of Olathe, et al., Appellate Case No. 22-3277. In response, Plaintiff repeated his argument that two of the cases assessed against him as strikes by this Court were filed not by him but by an individual named Eric Shields. See Id. Unpersuaded, the Tenth Circuit ordered Plaintiff to pay the full appellate filing fee on or before February 2, 2023. See Id. Plaintiff did not do so and, on February 8, 2023, the Tenth Circuit dismissed his appeal for lack of prosecution. See id.
Similarly, the January 9, 2023 deadline by which Plaintiff was required to pay the $402.00 district court filing fee has long since passed and Plaintiff has neither paid the fee nor moved for an extension of time in which to do so. Accordingly, this case is dismissed without prejudice.
In addition, the Court has reviewed the cases identified as strikes and finds nothing that reflects any was filed or prosecuted by anyone other than Plaintiff, who was the named plaintiff in each case. See Shields v. Hopkins, et al., Case No. 00-cv-3296-GTV (D. Kan. Nov. 14, 2000); Shields v. Koerner, et al., Case No. 00-cv-3328-GTV (D. Kan. Nov. 14, 2000); Shields v. Cline, et al., Case No. 20-cv-3077-SAC (D. Kan. June 23, 2020).
IT IS THEREFORE ORDERED BY THE COURT that this matter is dismissed without prejudice.
IT IS SO ORDERED.