Opinion
Civil Action No. 5:04-CV-187-C.
August 27, 2004
ORDER
Plaintiff filed a civil rights complaint pursuant to 42 U.S.C. § 1983 on March 17, 2004, (the date his inmate trust account was certified). He alleges that he is subjected to forced medication by Defendants and that Defendant Manning attempted to rape him in 2003. He seeks monetary damages.
A prisoner is barred from proceeding in forma pauperis in a proceeding under § 1983 if he has had three or more actions dismissed as frivolous, unless he demonstrates that he is under imminent danger of serious physical injury. 28 U.S.C. § 1915(g); Adepegba v. Hammons, 103 F.3d 383, 385 (5th Cir. 1996). See Carson v. Johnson, 112 F.3d 818, 821 (5th Cir. 1997) (noting that § 1915(g) does not prevent a prisoner from filing a complaint but prohibits him from proceeding in forma pauperis). This provision is known as the "three strikes" provision.
For purposes of counting a dismissal as a strike under § 1915(g), it is irrelevant when the strike occurred. Patton v. Jefferson Correctional Center, 136 F.3d 458, 464 (5th Cir. 1998). The only exception to the "three strikes" rule is for prisoners who can demonstrate that they are "under imminent danger of serious physical injury" as of the time they seek to file their complaints and proceed in forma pauperis. Banos v. O'Guin, 144 F.3d 883, 884-85 (5th Cir. 1998).
Section 1915(g) provides that a prisoner with three prior strikes may proceed in forma pauperis only if he is "under imminent danger of serious physical injury." However, the prisoner must show that he is "under imminent danger of serious physical injury" as of the time he seeks to file his complaint and to proceed in forma pauperis or to file an appeal and proceed in forma pauperis on appeal. Banos v. O'Guin, 144 F.3d 883, 884-85 (5th Cir. 1998); Choyce v. Dominguez, 160 F.3d 1068 (5th Cir. 1998).
According to the Three Strikes/Sanctions List maintained by the federal courts in Texas, Plaintiff has had at least four civil rights complaints dismissed as frivolous and several cases dismissed pursuant to the three-strikes provisions. Because Plaintiff has had three prior strikes, he cannot proceed in forma pauperis in the instant action unless he demonstrates that he was "under imminent danger of serious physical injury" at the time he signed and dated his complaint. 28 U.S.C. § 1915(g). See Cooper v. Brookshire, 70 F.3d 377, 378 (5th Cir. 1995) (holding that a prisoner's pro se civil rights complaint is considered filed as of the date it is delivered to prison authorities for mailing).
The Court finds that Plaintiff has failed to demonstrate that he was "under imminent danger of serious physical injury" when he filed his civil rights action; therefore, his application to proceed in forma pauperis is denied. If Plaintiff desires to pursue his civil rights action, he must pay the full filing fee of $150.00.
It is, therefore, ORDERED that Plaintiff should pay the filing fee of $150.00 on or before September 27, 2004.
The failure to timely pay the full filing fee shall result in the dismissal of the instant civil action without further notice.