Herman v. Ferriter et al

Filing 9

ORDER ADOPTING 8 FINDINGS AND RECOMMENDATIONS in full; denying 5 Motion for Leave to Proceed in forma pauperis. Plaintiff Herman shall have until April 30, 2012, in which to pay the filing fee of $350.00. If the filing fee isnot paid by that date, the Clerk of Court shall close the case file. Signed by Judge Dana L. Christensen on 3/28/2012. Mailed to Herman. (TAG, )

FILED

MAR 28 2012
PATRICK E. DUFFY. CLERK

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

HELENA DIVISION

LYLE HERMAN,
Plaintiff,

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CV 12-17-H-DLC-RKS

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vs.
MIKE FERRITER, et aI.,
Defendants.

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ORDER

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Plaintiff Lyle Herman, a state prisoner proceeding pro se, has applied to
proceed in forma pauperis with this action, in which he alleges prison officials
have failed to protect him and acted with deliberate indifference to his safety.
Plaintiff Herman has on three prior occasions brought an action in federal court
that was dismissed as frivolous, malicious, or for failure to state a claim, meaning
this claim is subject to the "three strikes" rule of28 U.S.C. § 1915(g). Under that

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statute, a prisoner-plaintiff may not proceed in forma pauperis unless he is in
imminent danger of serious physical injury.
United States Magistrate Judge Keith Strong recommends denial of Plaintiff
Herman's application to proceed in forma pauperis because Herman has not
alleged that he is in imminent danger of serious physical injury. Judge Strong
notes that Herman's allegations relate primarily to incidents where he believes he
was placed in unsafe locations in 2009 and 2010, and that Plaintiff Herman is
currently being housed in Administrative Segregation, where there is no allegation
that he faces any threat to his physical well-being. Under these circumstances,
Judge Strong concludes that Plaintiff Herman has failed to allege that he faces
imminent danger of physical harm. This Court reviews the Findings and
Recommendation for clear error. McDonnell Dou~las Com. v. Commodore Bus.
Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). Clear error exists if the Court is
left with a "definite and firm conviction that a mistake has been committed."
United States v. Syrax, 235 F.3d 422, 427 (9th Cir. 2000).
The Court can find no clear error with Judge Strong's Findings and
Recommendations (Doc. No.8) and therefore adopts them in full.
Accordingly, IT IS HEREBY ORDERED that Plaintiff Herman's motion to
proceed in forma pauperis (Doc. No.5) is DENIED. Plaintiff Herman shall have
until April 30, 2012, in which to pay the filing fee of$350.00. If the filing fee is
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not paid by that date, the Clerk of Court shall close the case file.
DATED this

2S~ay of March, 2012.

Dana L. Christensen, District Judge
United States District Court

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