Opinion
Misc. No. 08-277 (RCL).
April 30, 2008
MEMORANDUM OPINION
Pursuant to the Prison Litigation Reform Act ("PLRA"), a prisoner may not proceed in forma pauperis if while incarcerated he has filed at least three prior cases that were dismissed as frivolous, malicious, or for failure to state a claim. 28 U.S.C. § 1915(g); see Ibrahim v. District of Columbia, 463 F.3d 3, 6 (D.C. Cir. 2006); Ibrahim v. District of Columbia, 208 F.3d 1032, 1033 (D.C. Cir. 2000); Smith v. District of Columbia, 182 F.3d 25, 29 (D.C. Cir. 1999). There is an exception for a prisoner who shows that he "is under imminent danger of serious physical injury" at the time he files suit. 28 U.S.C. § 1915(g).
Petitioner has accumulated more than "three strikes" for purposes of the PLRA. See Banks v. Unknown Williams, No. 5:07-cv-226, 2008 WL 544946, at *1 (S.D. Miss. Feb. 21, 2008) (noting that plaintiff had accumulated at least four "strikes" for purposes of § 1915(g)); Banks v. Unknown Duckworth, No. 5:07-cv-214 (S.D. Miss. Dec. 7, 2007) (denying in forma pauperis status under § 1915(g) and ordering plaintiff to pay filing fee); Banks v. Crockett, No. 1:07-cv-1019, 2007 WL 1655504, at *2 (M.D. Pa. June 7, 2007) (taking judicial notice of three civil actions filed in the Western District of Pennsylvania and one civil action filed in the Middle District of Pennsylvania dismissed as legally frivolous or for failure to state a claim upon which relief can be granted). In this action, petitioner does not allege that he is in imminent danger of serious physical injury, and, therefore, does not otherwise qualify for in forma pauperis status. He is not barred entirely from proceeding with his claims, however. A prisoner whose in forma pauperis application is denied pursuant to § 1915(g) "may proceed under the fee provisions of 28 U.S.C. §§ 1911-14 applicable to everyone else." Magee v. Flores, No. C 06-3851, 2007 WL 951824, at *1 (N.D. Cal. Mar. 28, 2007) (citing Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996)).
Accordingly, petitioner's application to proceed in forma pauperis will be denied, and this action will be dismissed without prejudice to petitioner asserting the same claims in a petition for which he pays the filing fee in full at the outset. See Adepegba v. Hammons, 103 F.3d at 388. An Order consistent with this Memorandum Opinion will be issued separately on this same date.
SO ORDERED.