United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
STEPHANIE K. BOWMAN UNITED STATES MAGISTRATE JUDGE
Warren Parks, an inmate at the Putnamville Correctional
Facility, in Greencastle, Indiana, brings this pro se action
against Judge Brittany E. Coffman in connections with a
Butler County, Ohio, Child Support Agency income withholding
order. (Doc. 1-1). This matter is before the Court on
plaintiff's motion to proceed in forma pauperis.
(Doc. 1). For the reasons that follow, plaintiff's motion
should be denied.
prisoner's right to proceed in forma pauperis
has been restricted by Congress. In accordance with section
804(d) of the Prison Litigation Reform Act (PLRA) of 1995,
Pub. L. No. 104-134, 110 Stat. 1321, amending 28 U.S.C.
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.
28 U.S.C. § 1915(g).
is prohibited by § 1915(g) from proceeding in forma
pauperis in this case because three prior complaints
filed by him while he has been a prisoner were dismissed with
prejudice for failure to state a claim upon which relief may
be granted. See Parks v. Indiana, et al.,
No. 1:08-cv-00358-LJM-WTL (S.D. Ind. Mar. 27, 2008) (Doc. 4)
(relying on the following prior dismissals under 28 U.S.C.
§ 1915A in finding plaintiff had acquired three or more
“strikes”: Parks v. Brookville I.G.A.,
No. 1:07-cv-1369-DFH-JMS (S.D. Ind. Jan. 24, 2008); Parks
v. Honorable John Williams, No. 1:07-cv-1463-JDT-WTL
(S.D. Ind. Nov. 20, 2007 & Dec. 13, 2007); Parks v.
Brookville I.G.A., et al., No. 1:08-cv-121-LJM-WTL (S.D.
Ind. Mar. 4, 2008)). See also Parks v. Schepper, No.
1:16-cv-2144-WTL-DML (S.D. Ind. Aug. 16, 2016) (Doc. 4)
(denying plaintiff's in forma pauperis motion
based on “three strikes”). Plaintiff's
previous dismissals prevent him from filing this action
in forma pauperis.
of his three “strikes, ” plaintiff may not
proceed in forma pauperis unless he falls within the
statutory exception set forth in 28 U.S.C. § 1915(g),
which applies to prisoners who are “under imminent
danger of serious physical injury.” Under the plain
language of the statute, plaintiff must be in imminent danger
at the time that he seeks to file his suit in federal court
to qualify for the exception to the “three
strikes” provision of § 1915(g). See Vandiver
v. Vasbinder, 416 Fed.Appx. 560, 561-62 (6th Cir. 2011)
(and cases cited therein) (holding in accordance with other
circuit courts that “the plain language of §
1915(g) requires the imminent danger to be contemporaneous
with the complaint's filing”); accord Chavis v.
Chappius, 618 F.3d 162, 169 (2nd Cir. 2010) (citing
Malik v. McGinnis, 293 F.3d 559, 563 (2d Cir.
2002)); Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th
Cir. 2003); Martin v. Shelton, 319 F.3d 1048, 1050
(8th Cir. 2003); Abdul-Akbar v. McKelvie, 239 F.3d
307, 312 (3d Cir. 2001) (en banc); Medberry v.
Butler, 185 F.3d 1189, 1193 (11th Cir. 1999); Banos
v. O'Guin, 144 F.3d 883, 884 (5th Cir. 1998) (per
curiam); Chase v. O'Malley, 466 Fed.Appx. 185,
186-87 (4th Cir. 2012) (per curiam). Cf. Pointer v.
Wilkinson, 502 F.3d 369, 371 n.1 (6th Cir. 2007).
“By using the term ‘imminent,' Congress
indicated that it wanted to include a safety valve for the
‘three strikes' rule to prevent impending harms,
not those harms that had already occurred.”
Abdul-Akbar, 239 F.3d at 315.
Court is unable to discern from plaintiff's complaint any
facts showing he meets the statutory exception. Because
plaintiff has failed to allege particular facts showing any
immediate or impending serious physical injury in existence
at the time he commenced this action, he does not meet the
exception to the “three strikes” rule set forth
in 28 U.S.C. § 1915(g).
IS THEREFORE RECOMMENDED THAT:
Plaintiff's motion to proceed in forma pauperis
(Doc. 1) be DENIED.
Plaintiff be ordered to pay the full $400 fee ($350 filing
fee plus $50 administrative fee) required to commence this
action within thirty (30) days, and that plaintiff be
notified that his failure to pay the full $400 fee within
thirty days will result in the dismissal of his action.
See In re Alea, 286 F.3d 378, 382 (6th Cir. 2002).
Court certify pursuant to 28 U.S.C. § 1915(a)(3) that
for the foregoing reasons an appeal of any Order adopting
this Report and Recommendation would not be taken in good
faith. See McGore v. Wrigglesworth, 114 F.3d 601
(6th Cir. 1997).
to Fed.R.Civ.P. 72(b), any party may serve and file specific,
written objections to this Report & Recommendation
(“R&R”) within FOURTEEN (14)
DAYS after being served with a copy thereof. That
period may be extended further by the Court on timely motion
by either side for an extension of time. All objections shall
specify the portion(s) of the R&R objected to, and shall
be accompanied by a memorandum of law in support of the
objections. A party shall respond to an opponent's
objections within FOURTEEN DAYS after being
served with a copy of those objections. Failure to make
objections in ...