White v. Larkins et al
Filing
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OPINION, MEMORANDUM, AND ORDER: IT IS HEREBY ORDERED that plaintiffs motion to proceed in forma pauperis [Doc. 2] is DENIED. IT IS FURTHER ORDERED that this action is DISMISSED without prejudice. An Order of Dismissal will be filed separately. Signed by Honorable Henry E. Autrey on 11/9/11. (TRC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
YANCEY LAMARR WHITE,
Plaintiff,
v.
STEVE LARKINS, et al.,
Defendants.
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No. 4:11CV1878 DDN
OPINION, MEMORANDUM AND ORDER
This matter is before the Court on plaintiff's motion to proceed in forma
pauperis. The motion will be denied.
Title 28 U.S.C. § 1915(g) states:
In no event shall a prisoner bring a civil action . . . 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.
A review of the United States Case Party Index shows that plaintiff has
previously incurred three “strikes” under § 1915(g). In White v. Officer, 3:08CV220
MJR (S.D. Ill.), plaintiff brought an action, while he was incarcerated and in which
he was permitted to proceed in forma pauperis, that was dismissed as legally
frivolous. In White v. Wells Fargo, 3:08CV221 MJR (S.D. Ill.), plaintiff brought an
action, while he was incarcerated, that was dismissed as legally frivolous.1 In White
v. City of St. Louis, 4:10CV1842 HEA (E.D. Mo.), plaintiff brought an action, while
he was incarcerated and in which he was permitted to proceed in forma pauperis, that
was dismissed as either legally frivolous or for failure to state a claim upon which
relief can be granted, or both. In each of these actions, plaintiff either failed to appeal
or the decision was affirmed on appeal. Moreover, the Court has reviewed the instant
complaint and finds no indication that plaintiff is in imminent danger of serious
physical injury. As a result, the Court will dismiss this action without prejudice to
refiling as a fully paid complaint.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to proceed in forma
pauperis [Doc. 2] is DENIED.
1
The Court notes that in the order dismissing the Wells Fargo action the court
stated, “this action should be counted as one of [plaintiff’s] three allotted “strikes”
under the provisions of 28 U.S.C. § 1915(g), but at this time the Court will not assess
the strike.” The Court further notes that the Wells Fargo court never ruled plaintiff’s
motion to proceed in forma pauperis in that case, but it did allow plaintiff to proceed
without payment of the filing fee.
The Wells Fargo court’s statement that it would not assess a “strike” against
plaintiff has no legal effect. A district court has no authority to assess or not to assess
“strikes” under § 1915(g). Rather, a case becomes a strike only if the case is
dismissed as frivolous, malicious, or for failure to state a claim upon which relief can
be granted and the decision is either affirmed on appeal or plaintiff does not take an
appeal. For this reason, this Court finds that, under the plain language of § 1915(g),
the Wells Fargo case counts as a “strike.”
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IT IS FURTHER ORDERED that this action is DISMISSED without
prejudice.
An Order of Dismissal will be filed separately.
Dated this 9th day of November, 2011.
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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