Garner v. Colen et al

Filing 5

ORDER: The order granting Garner's motion to proceed in forma pauperis ( 4 ) is hereby VACATED and the motion to proceed in forma pauperis ( 2 ) is DENIED. All further proceedings in this matter shall be held in abeyance for thirty (30) days pen ding Garner's delivery of the filing fee in the amount of $400.00 (cash, bank check or money order made payable to the Clerk of Court) to the Clerk's Office, 915 Lafayette Boulevard, Bridgeport, CT 06604. Failure to tender the filing fee within thirty (30) days from the date of this Order will result in the dismissal of this action. Signed by Judge Stefan R. Underhill on 11/23/2015.(Pollack, R.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

DAVID LEE GARNER,
Plaintiff,
v.
JOHN COLEN, et. al.,
Defendants.

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CASE NO. 3:15-cv-1625 (SRU)

RULING AND ORDER
Plaintiff David Lee Garner, currently incarcerated at the United States Penitentiary at
Lewisburg, Pennsylvania, has filed this action pro se. On November 17, 2015, leave to proceed
in forma pauperis was granted. After careful consideration, however, the Court concludes that in
forma pauperis status was improvidently granted. Accordingly, the order granting in forma
pauperis status is vacated and Garner is required to tender the filing fee to proceed in this case.
The Prison Litigation Reform Act amended the statute governing proceedings filed in
forma pauperis. In relevant part, Section 804(d) of the Prison Litigation Reform Act amended 28
U.S.C. ' 1915 by adding the following subsection:
(g) 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.
This provision of the Prison Litigation Reform Act requires the denial of the plaintiff=s motion to
proceed in forma pauperis in this case. Garner previously has had more than three cases or
appeals dismissed as frivolous. See Garner v. Supreme Court of the United States, No.
1:13-cv-466-UNA, 2013 WL 1456425 (D.D.C. Apr. 10, 2013); Garner v. Supreme Court of

United States, 540 F. App’x 9 (D.C. Cir. 2013); Garner v. United States District of South
Carolina, Civil Action No. 3:08-3913-TLW-JRM, 2009 WL 2192664 (D.S.C. July 21, 2009);
Garner v. United States District of South Carolina, 357 F. App’x 519 (4th Cir. 2009); Garner v.
Supreme Court of United States, C/A No. 3:11-2702-TLW-JRM, 2011 WL 7790900 (D.S.C.
Dec. 16, 2011); Garner v. Supreme Court of United States, 474 F. App’x 387 (4th Cir. 2012);
Garner v. Supreme Court of United States, C/A No. 2:14-2243-TLW-WWD (D.S.C. Nov. 6,
2014); Garner v. Columbia Care Center, C/A No. 3:07-3653-TLW-JRM (D.S.C. Sept. 9, 2008).
Because the three-strikes provision applies in this case, Garner may not bring the present
action without payment of the filing fee absent allegations of Aimminent danger of serious
physical injury.@ See Pettus v. Morgenthau, 554 F.3d 293, 297 (2d Cir. 2009) (Aindigent
three-strikes prisoner [may] proceed IFP in order to obtain a judicial remedy for an imminent
danger@). To proceed without prepayment of the filing fee, the plaintiff must meet two
requirements. He must show (1) the imminent danger of serious physical injury he alleges is
fairly traceable to unlawful conduct alleged in the complaint and (2) that a favorable judicial
outcome would redress the injury. See id. at 296-97. In addition, the danger of imminent harm
must be present at the time the complaint is filed. See id. at 296.
Garner lists various high-level officials in the federal government as defendants,
including past and present directors of the FBI and CIA, the Chief Justice of the United States
Supreme Court, and a former United States Attorney General. Garner alleges that the defendants,
along with hundreds of other high-ranking government officials listed as affiliates in pages
attached to the complaint, were part of a civil RICO conspiracy involving kidnapping, murder
and extortion. He alleges no facts to support the conspiracy claims against any of the individual
defendants. Garner also attaches to his complaint copies of disciplinary reports he received in
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2012 and 2013. Because no employees of the Bureau of Prisons are named as defendants in this
case, the Court cannot discern any reason for the inclusion of the reports. Garner alleges no facts
showing that he is in danger of serious physical injury from any of the defendants. Thus, the
plaintiff fails to meet the exception.
Conclusion
The order granting Garner’s motion to proceed in forma pauperis [Doc. #4] is hereby
VACATED and the motion to proceed in forma pauperis [Doc. #2] is DENIED. All further
proceedings in this matter shall be held in abeyance for thirty (30) days pending Garner=s delivery
of the filing fee in the amount of $400.00 (cash, bank check or money order made payable to the
Clerk of Court) to the Clerk=s Office, 915 Lafayette Boulevard, Bridgeport, CT 06604. Failure
to tender the filing fee within thirty (30) days from the date of this Order will result in the
dismissal of this action.
SO ORDERED this 23rd day of November 2015, at Bridgeport, Connecticut.
/s/ STEFAN R. UNDERHILL
Stefan R. Underhill
United States District Judge

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