Opinion
Civil Action No. 3:21CV231
05-11-2021
CALVIN PERRY, Plaintiff, v. HAROLD CLARKE, et al., Defendants.
MEMORANDUM OPINION
Plaintiff, a Virginia inmate, has filed a complaint pursuant to 42 U.S.C. § 1983. Plaintiff has not paid the filing fee. Thus, he presumably wishes to proceed without prepayment of fees and wishes to seek leave to proceed in forma pauperis. The pertinent statute provides:
In no event shall a prisoner bring a civil action [in forma pauperis] 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). Plaintiff has at least three other actions or appeals that have been dismissed as frivolous or for failure to state a claim. See Perry v. Virginia, No. 7:08-CV-00193, 2008 WL 533997, at *2 (W.D. Va. Feb. 27, 2008) (citations omitted) (dismissing action pursuant to § 1915(g) for having three strikes); Perry v. Mills, No. 3:07-CV-00445, 2007 WL 2821803, at *2 (W.D. Va. Sept. 27, 2007) (same); see also Perry v. Bassett, No. 7:05-CV-519, 2005 WL 2217014, at *6 n.1 (W.D. Va. Sept. 13, 2005) (noting plaintiff's prior dismissals pursuant to § 1915(g)) (citations omitted); cf. Perry v. Dobyns, No. 3:20CV206, 2020 WL 6273980, at *6 (E.D. Va. Oct. 26, 2020) (directing the clerk "to note the disposition of the action for purposes of 28 U.S.C. § 1915(g)").
Plaintiff's current submission does not suggest that he is in imminent danger of serious physical harm. Accordingly, his request to proceed in forma pauperis will be DENIED. The action will be DISMISSED WITHOUT PREJUDICE.
As Perry has been previously advised, "[a]llegations that the inmate has faced imminent danger in the past are insufficient to trigger the § 1915(g) exception." Perry, 2007 WL 2821803, at *1 (citing Abdul-Akbar v. McKelvie, 239 F.3d 307, 307 (3d Cir. 2001); Abdul-Wadood v. Nathan, 91 F.3d 1023 (7th Cir. 1996)).
Plaintiff remains free to submit his complaint with the full $402 filing fee. The Court will process such a complaint as a new civil action.
An appropriate Order shall accompany this Memorandum Opinion.
/s/_________
John A. Gibney, Jr.
United States District Judge Date: 11 May 2021
Richmond, Virginia