Wallace v. Roosevelt County Head Jailer et al

Filing 5

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS ; denying 3 Motion for Leave to Proceed in forma pauperis. The Complaint shall be DISMISSED and the Clerk of Court shall close the case and enter judgment if the filing fee is not received within 30 days of the date of this Order. Signed by Judge Brian Morris on 9/27/2016. Mailed to Wallace. (TAG, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
GREGORY L. WALLACE,
CV-16-88-GF-BMM-JTJ

Plaintiff,
vs.
ROOSEVELT COUNTY HEAD
JAILER, et. al.,

ORDER

Defendants.

Plaintiff Gregory Wallace (Wallace) is a prisoner at the Montana State Prison
proceeding pro se. Wallace has filed a document which purports to be a civil
complaint (Doc. 1). Wallace has moved for leave to proceed in forma pauperis.
(Doc. 3.)
United States Magistrate Judge John Johnston entered Findings and
Recommendations in this matter on August 30, 2016. (Doc. 4). Judge Johnston
recommended that Wallace’s Motion to Proceed in Forma Pauperis be denied.
Judge Johnston determined that Wallace is barred from proceeding in forma
pauperis by the three strikes provision in 28 U.S.C. § 1915(g).

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The Court has reviewed Judge Johnston’s Finding and Recommendations de
novo. The Court finds no error in Judge Johnston’s Findings and Recommendations,
and adopts them in full.
The three strikes provision in 28 U.S.C. § 1915(g) provides as follows:
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.
Wallace has filed four civil actions which have been dismissed for failure to
state a claim. See Wallace v. N. Cheyenne Corrections Officers, et al., CV-09-116BLG-RFC (Judgment of dismissal entered on December 30, 2009); Wallace v.
Hamm, et al., CV-12-73-BLG-RFC (Judgment of dismissal entered on October 5,
2012); Wallace v. Sioux-Assinniboine Corrections, et al., CV-15-30-GF-BMM
(Judgment of dismissal entered on November 16, 2015); and Wallace v. CIA/BIA
Corrections Department, et al., CV-15-55-M-DLC (Judgment of dismissal entered
on January 6, 2016).
Wallace has exceeded the three strikes allowed a prisoner attempting to
proceed in forma pauperis in a federal lawsuit. He cannot proceed in forma
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pauperis in this case unless he can show that he qualifies for the “imminent danger
of serious physical injury” exception in 28 U.S.C. § 1915(g). The allegations in
Wallace’s Complaint, even when construed liberally, do not support a finding that
Wallace is in “imminent danger of serious physical injury.”
Accordingly, IT IS ORDERED:
1.

Wallace’s Motion to Proceed in Forma Pauperis (Doc. 3) is DENIED.

2.

Wallace must pay the full filing fee of $400.00 within 30 days of the

date of this Order.
3.

Wallace may take no further action in this case until the filing fee is

4.

The Complaint shall be DISMISSED and the Clerk of Court shall

paid.

close the case and enter judgment if the filing fee is not received within 30 days of
the date of this Order.
DATED this 26th day of September, 2016.

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