Foster v. Lombardi et al

Filing 9

MEMORANDUM AND ORDER re: 8 MOTION for Reconsideration re 6 Order of Dismissal (case - Stipulation of Dismissal) filed by Plaintiff William Wentworth Foster motion is DENIED. IT IS FURTHER ORDERED that an appeal of this action would not be taken in good faith.. Signed by District Judge Stephen N. Limbaugh, Jr on 10/13/16. (MRS)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI SOUTHEASTERN DIVISION WILLIAM WENTWORTH FOSTER, Plaintiff, v. GEORGE LOMBARDI, et al., Defendants, ) ) ) ) ) ) ) ) ) No. 1:16-CV-241 SNLJ MEMORANDUM AND ORDER This matter is before the Court on plaintiff=s motion for reconsideration of the dismissal of his complaint. Plaintiff asserts that the Court erred in failing to believe his claims of “imminent danger” in his complaint. Plaintiff, a prisoner, has filed at least three previous cases that were dismissed as frivolous, malicious, or for failure to state a claim.1 Under 28 U.S.C. § 1915(g), therefore, the Court may not grant a motion to proceed in forma pauperis unless plaintiff “is under imminent danger of serious physical injury.” In his complaint, plaintiff asserted that he despite his “three strikes” status, he should be allowed to proceed in forma pauperis because he and “thousands of other inmates” cannot afford hygiene items from the canteen and are therefore forced to buy them from predatory inmates. Plaintiff even goes so far as to say that these predatory inmates are gang members and threaten he and other prisoners. Plaintiff claims that he and others could be assaulted by one of these inmates in the future, if he is unable to pay back his loans. 1 See Foster v. Moore, No. 2:91-CV-4539 (W.D. Mo.); Foster v. Malone, No. 2:90-CV-4058 (W.D. Mo.); and Foster v. Rutledge, No. 2:89-CV-4496 (W.D. Mo.). As noted in the Court’s prior orders, however, plaintiff did not allege that he recently received a credible threat or that correctional officers have refused recent requests for protection. His other claims of physical harm refer to incidents that occurred in 2014 and 2015, which do not qualify as imminent danger. See Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998). Additionally, plaintiff has not explained why he has gone to these particular “predatory” inmates to borrow money, or why he has not sought protective custody. As a result, the Court will deny plaintiff’s motion for reconsideration of the dismissal of this action. Plaintiff has not shown that he is in imminent danger of serious physical injury at the time of filing this action. Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for reconsideration [Doc. #8] is DENIED. IT IS FURTHER ORDERED that an appeal of this action would not be taken in good faith. Dated this 13th day of October, 2016. STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE 2

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