Davis v. United States District Court for the District of Kansas

Filing 8

ORDER ENTERED: The complaint is dismissed without prejudice. Plaintiff's pending motions 5 & 7 are rendered moot. Signed by Senior District Judge Sam A. Crow on 11/1/2011. (Mailed to pro se party Anthony L. Davis by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ANTHONY LEROY DAVIS,
Plaintiff,
v.

CASE NO. 11-3135-SAC

UNITED STATES DISTRICT COURT,
DISTRICT OF KANSAS,
Defendant.

O R D E R
Before the court is a pro se complaint submitted by a prisoner
incarcerated in a state correctional facility in Kansas.
titles

his

pleading

as

a

“COMPLAINT

ON

AN

Plaintiff

ACCOUNT,”

seeks

certification to the United States Attorney General pursuant to 28
U.S.C. § 2403,1 and appears to challenge the amounts owed and paid
in filing fees for his previous actions and appeals in federal
court.
It also appears plaintiff is challenging the constitutionality
of 28 U.S.C. § 1915(g), a “3-strike” provision whereby a prisoner is
not allowed to bring an in forma pauperis civil action or appeal in
federal

court

if,

on

three

or

more

prior

occasions,

while

incarcerated, he brought an action which was dismissed as frivolous
or for failure to state a claim upon which relief may be granted,
unless he is under imminent danger of serious physical injury.

The

court has previously notified plaintiff that absent a showing that

1

28 U.S.C. § 2403 directs a district court to notify the
Attorney General “if the constitutionality of Act of Congress
affecting he public interest is drawn into question,” and to permit
intervention by the United States to present admissible evidence and
argument on the constitutional question.

he is under imminent danger of serious physical injury, he has lost
the right to proceed in forma pauperis in federal court because of
his repeated prosecution of frivolous lawsuits.
In the instant matter, plaintiff essentially disputes one or
more

of

the

“strikes”

previously

identified

by

the

court

in

plaintiff’s litigation history, and seeks $1,500 in damages plus
interest for filing fees paid in cases and appeals that were
summarily dismissed and not allowed to proceed on the merits of
plaintiff’s claims.2

However, plaintiff did not submit the $350.00

filing fee to proceed in federal court on the instant complaint, and
plaintiff makes no allegation or showing that he is under imminent
danger of serious physical injury for purposes of avoiding the “3strike” bar in § 1915(g) in order to proceed in forma pauperis
without prepayment of the district court filing fee. The court thus
dismisses the complaint.
IT IS THEREFORE ORDERED that the complaint is dismissed without
prejudice, and that plaintiff’s pending motions (Docs. 5 and 7) are
thereby rendered moot.
IT IS SO ORDERED.
DATED:

This 1st day of November 2011 at Topeka, Kansas.

s/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge

2

Court records disclose that plaintiff has fully satisfied all
district and appellate filing fee obligations related to his
previous cases in the District of Kansas but for one case in which
payment of the district and appellate filing fees continues.
2