Wallace v. United States A.A. Office et al

Filing 5

FINDINGS AND RECOMMENDATIONS re 1 MOTION for Leave to Proceed in forma pauperis filed by Gregory Lynn Wallace. Signed by Magistrate Judge John Johnston on 11/15/2016. Mailed to Wallace. (TAG, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
GREGORY L. WALLACE,

CV 16-00101-GF-BMM-JTJ

Plaintiff,
vs.
UNITED STATES A.A. OFFICE,
B.I.A. CORRECTIONS PERSONNEL,
U.S.B.O.P., MONTANA STATE
PRISON INFIRMARY,

FINDINGS AND
RECOMMENDATIONS OF
UNITED STATES MAGISTRATE
JUDGE

Defendants.
Plaintiff Gregory Wallace, a prisoner at Montana State Prison, proceeding
without counsel, filed a motion to proceed in forma pauperis (Doc. 1) and a lodged
civil complaint. (Doc. 2.) In order to proceed in forma pauperis, Mr. Wallace
must overcome the three strikes provision of 28 U.S.C. § 1915(g). Permission to
proceed in forma pauperis is discretionary with the Court. See 28 U.S.C. §
1915(a). 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.

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Mr. Wallace filed four civil actions which have been dismissed for failure to
state a claim. See Wallace v. N. Cheyenne Corrections Officers, et al., CV-0900116-BLG-RFC-CSO (D. Mont. Judgment of dismissal filed December 30,
2009); Wallace v. Hamm, et al., CV-12-00073-BLG-RFC (D. Mont. Judgment of
dismissal filed October 5, 2012); Wallace v. Sioux-Assinniboine Corrections, et al.,
CV-15-00030-GF-BMM (D. Mont. Judgment of dismissal filed November 16,
2015); and Wallace v. CIA/BIA Corrections, et al., CV-15-00055-M-DLC
(D.Mont. Judgment of dismissal filed January 6, 2016).
Mr. Wallace has exceeded the three “strikes” allowed by the Prison
Litigation Reform Act to a prisoner attempting to proceed in forma pauperis in a
federal civil lawsuit. As such, he cannot proceed in forma pauperis in the instant
case unless he can show that he qualifies for the “imminent danger of serious
physical injury” exception of 28 U.S.C. § 1915(g).
On September 26, 2016, the Court gave Mr. Wallace an opportunity to
provide factual information to establish that he is in “imminent danger of serious
physical injury.” (Doc. 4.) He failed to respond. Accordingly, the Court finds that
Mr. Wallace was not under imminent danger of serious physical injury at the time
he filed his complaint. As such, his motion to proceed in forma pauperis should be
denied.
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Mr. Wallace is not entitled to a fourteen-day period to object. See Minetti v.
Port of Seattle, 152 F.3d 1113, 1114 (9th Cir. 1998) (per curiam). No motion for
reconsideration will be entertained.
Accordingly, the Court issues the following:
RECOMMENDATIONS
1. Mr. Wallace’s Motion to Proceed in Forma Pauperis (Doc. 1) should be
DENIED pursuant to Local Rule 3.1(d)(4).
2. This matter should be closed if Mr. Wallace fails to pay the $400.00
filing fee within 21 days of the adoption of these Findings and Recommendations.
DATED this 15th day of November 2016.

/s/ John Johnston
John Johnston
United States Magistrate Judge

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