MICHAEL J. REAGAN, District Judge.
On July 8, 2014, the undersigned Judge granted Plaintiff's motion to proceed in forma pauperis or "IFP" (Doc. 13) in this civil rights lawsuit filed under 28 U.S.C. 1983. Although the Court found Plaintiff had three "strikes" for purposes of 28 U.S.C. 1915(g) and thus should not be able to proceed IFP in this case, Plaintiff had alleged that he was in imminent danger of a serious physical harm (the complaint alleged that he experienced significant weight loss which doctors had refused to treat).
So, the Court allowed Plaintiff to proceed IFP under the "imminent danger" exception and referred Plaintiff's preliminary injunction request to Magistrate Judge Stephen C. Williams.
Having now ruled on Plaintiff's requests for preliminary injunction (via December 9, 2014 disposition of Magistrate Judge Williams' Report and Recommendation and Plaintiff's objections thereto) and having found Plaintiff not entitled to a preliminary injunction (as there was no indication that he was suffering from malnutrition or that he was medically entitled to additional food) the Court sua sponte reconsiders Plaintiff's pauper status.
Title 28 U.S.C. 1915 permits federal courts to "authorize the commencement . . . of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees." That authority, however, is constrained by Section 1915(g) which provides:
This provision commonly is referred to as the "three strikes rule." When an action is dismissed as frivolous, malicious, or for failing to state a claim, it is sometimes stated that such dismissal is a strike for purposes of Section 1915(g). If a prisoner accumulates three strikes, he is unable to proceed IFP, unless he is under imminent danger of serious physical injury.
Put another way, a court reviewing a prisoner's motion to proceed IFP must determine whether the prisoner has accumulated three or more prior strikes. If so, the prisoner cannot proceed IFP (unless he is under imminent danger of serious physical injury). Although Section 1915 does not define the point at which an action is "brought," Rule 3 of the Federal Rules of Civil Procedure provides that a "civil action is commenced by filing a complaint with the court." It is axiomatic that a civil action is "brought" when the action is commenced under Rule 3. Thus, a civil action is brought for purposes of Section 1915(g) when a complaint is filed with a court.
The Court previously found that Plaintiff had three strikes, in that he had three actions that had been dismissed as frivolous, malicious, or failing to state a claim. See Allen v. Chapman, Case No. 11-cv-1130-MJR (S.D. Ill., dismissed Aug. 29, 2012); Allen v. Godinez, Case No. 12-cv-936-GPM (S.D. Ill., dismissed Oct. 18, 2012); and Allen v. Harrington, Case No. 13-cv-725-GPM (S.D. Ill., dismissed Aug. 22, 2013). While, the Court initially allowed Plaintiff to proceed IFP herein due to the allegation of imminent danger, the Court on December 9, 2014 (Order at Doc. 118) determined that this claim was baseless. In adopting Judge Williams' Report and Recommendation denying Plaintiff's preliminary injunction request, this Court concluded that Plaintiff was not suffering from malnutrition as alleged in his complaint. The Court accepted Judge Williams' observations (following an evidentiary hearing) that Plaintiff was neither skeletal nor emaciated, and that Plaintiff appeared muscular, fit, and healthy. The undersigned also found no evidence that Plaintiff was being denied medical care.
The Court now finds that there is no evidence that Plaintiff is in "imminent danger of a serious physical injury." Thus, Plaintiff may no longer proceed IFP. Plaintiff's leave to proceed in forma pauperis is hereby
As to the stay, one point bears discussion. While this Order was being drafted, Plaintiff sought to extend two deadlines. He filed one motion asking Judge Williams to extend the deadline to file an "appeal" to the undersigned District Judge (under Local Rule 73.1 of this District) from Magistrate Judge Williams' Order at Doc. 121. Yesterday (see Doc. 129), Judge Williams granted that extension and gave Plaintiff until January 12, 2015 to file any "appeal" to the undersigned from Judge Williams' Order at Doc. 121.
By separate motion filed December 23, 2014 (Doc. 125), Plaintiff asks the undersigned to extend the time — "
The Clerk of Court
IT IS SO ORDERED.