Filed: Jan. 04, 2016
Latest Update: Jan. 04, 2016
Summary: ORDER OF DISMISSAL ROBERT L. HINKLE , District Judge . This prisoner civil-rights case is before the court on the report and recommendation, ECF No. 54, and the objections, ECF Nos. 61 (incorporating by reference ECF No. 50). I have reviewed de novo the issues raised by the objections. The "three strikes" provision of the Prison Litigation Reform Act provides: In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if th
Summary: ORDER OF DISMISSAL ROBERT L. HINKLE , District Judge . This prisoner civil-rights case is before the court on the report and recommendation, ECF No. 54, and the objections, ECF Nos. 61 (incorporating by reference ECF No. 50). I have reviewed de novo the issues raised by the objections. The "three strikes" provision of the Prison Litigation Reform Act provides: 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..
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ORDER OF DISMISSAL
ROBERT L. HINKLE, District Judge.
This prisoner civil-rights case is before the court on the report and recommendation, ECF No. 54, and the objections, ECF Nos. 61 (incorporating by reference ECF No. 50). I have reviewed de novo the issues raised by the objections.
The "three strikes" provision of the Prison Litigation Reform Act provides:
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).
As noted in the report and recommendation, the plaintiff has at least three "strikes" under § 1915(g). He originally alleged that he was in imminent danger of serious physical injury, but the record now shows that he is not.
The plaintiff has hepatitis C. He is being monitored and evaluated for appropriate treatment. He disagrees with the facility's medical director's judgment that this is sufficient, but the record at least establishes that he is not in imminent danger. When, as here, a prisoner with three strikes has been granted leave to proceed in forma pauperis on what turns out to be a false allegation of imminent danger, it is appropriate to revoke leave to proceed in forma pauperis. Otherwise the prisoner would be allowed to proceed in forma pauperis in violation of § 1915(g).
This order accepts the report and recommendation, adopts it as the court's further opinion, revokes leave to proceed in forma pauperis, and dismisses the case. The plaintiff may pursue his claim by filing a new action and paying the filing fee. He is not entitled to proceed in forma pauperis.
IT IS ORDERED:
1. The report and recommendation is ACCEPTED.
2. Leave to proceed in forma pauperis is revoked.
3. The clerk must enter judgment stating, "This case is dismissed without prejudice under 28 U.S.C. § 1915(g)."
4. All other pending motions are denied as moot.
5. The clerk must close the file.
SO ORDERED.
