Ash-Shahid (ID 42089) v. Roberts et al

Filing 6

ORDER dismissing complaint without prejudice, based upon plaintiff's failure to satisfy the district court filing fee requirement. Signed by Senior District Judge Sam A. Crow on 2/7/2013. (Mailed to pro se party Wahid A. Ash-Shahid by regular mail)(mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

WAHID A. ASH-SHAHID
aka JAMES NANCE,
Plaintiff,
v.

CASE NO. 12-3257-SAC

RAY ROBERTS, et al.,
Defendants.

O R D E R
Plaintiff proceeds pro se on a civil complaint seeking relief
under 42 U.S.C. § 1983.

On January 4, 2013, the court found

plaintiff’s litigation history in the District of Kansas included
three actions that had been dismissed as frivolous or as failing to
state a claim upon which relief may be granted.

Pursuant to the

“3-strike” provision in 28 U.S.C. § 1915(g), and finding no showing
that plaintiff was subject to an imminent danger of serious physical
injury, the court denied plaintiff’s motion for leave to proceed in
forma pauperis in this matter, the court directed plaintiff to pay
the $350.00 district court filing fee to avoid dismissal of the
complaint without prejudice.

The court also advised plaintiff that

to challenge the execution of his state sentence, plaintiff must
proceed in habeas corpus under 28 U.S.C. § 2241 after first exhausting
state court remedies.
In response, plaintiff first insists that he is seeking damages
under § 1983 in the instant action, and objects to any judicial
re-characterization of his action as proceeding in habeas corpus.

The court finds plaintiff’s objection is unwarranted, as the court
never

indicated

it

intended

to

re-characterize

the

nature

of

plaintiff’s § 1983 complaint.
Also in response, plaintiff challenges the court’s finding that
two of plaintiff’s prior actions should be counted as “strikes” for
purpose of § 1915(g).

The court finds no merit to either challenge.

Plaintiff first contends the dismissal of a previous complaint
as time barred is not a strike, but the Tenth Circuit has held to the
contrary.
(10th

See Smith v. Veterans Administration, 636 F.3d 1306, 1313

Cir.2011)(claims

dismissed

as

time

barred

constitute

a

dismissal for failing to state a claim, and count as a strike under
§ 1915(g)).

Secondly, plaintiff contends the dismissal of another

previous complaint as failing to state a claim for relief is not a
strike because “[a] case dismissed for any other reason than
frivolousness, maliciousness, or failure to state a claim is not a
strike.”1

At best plaintiff misreads or misunderstands § 1915(g), as

it clearly defeats plaintiff’s challenge to the court’s assessment
of a second strike.
Finding no reason to modify its decision to deny plaintiff leave
to proceed in forma pauperis pursuant to the 3-strike bar in § 1915(g),
and noting plaintiff’s failure to pay the district court filing fee
required by § 1914(a), the court concludes the complaint should be
dismissed without prejudice.

1

Plaintiff’s Motion for Objection, Doc. 5, p.3 (citing Tafari v. Hues, 473
F.3d 440, 443 (2nd Cir.2007)).

IT IS THEREFORE ORDERED that the complaint is dismissed without
prejudice, based upon plaintiff’s failure to satisfy the district
court filing fee requirement.
IT IS SO ORDERED.
DATED:

This 7th day of February 2013 at Topeka, Kansas.

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