Jones v. Wiesant et al

Filing 14

ORDER DISMISSING CASE without prejudice. Plaintiff's Motion to proceed in forma pauperis (Doc. No. 2) is DENIED pursuant to 28 U.S.C. § 1915(g). Signed by Chief Judge Frank D. Whitney on 07/05/17. (Pro se litigant served by US Mail.)(emw)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:17-cv-00093-FDW
ERIC S. JONES,
Plaintiff,
vs.
FNU WIESANT, et al.,

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ORDER

Defendants.
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THIS MATTER is before the Court on initial review of Plaintiff's pro se Complaint filed
under 42 U.S.C. § 1983 (Doc. No. 1). See 28 U.S.C. §§ 1915A and 1915(e). Also before the
Court is Plaintiff’s motion to proceed in forma pauperis. (Doc. No. 2.)
Plaintiff is a prisoner of the State of North Carolina. In the instant Complaint, he claims
Defendants were deliberately indifferent to his serious medical needs while he was held/housed
at the Burke-Catawba Detention Center in 2016. The Court does not reach the merits of the
Complaint because Plaintiff is subject to the “three-strikes” provision of 28 U.S.C. § 1915(g).
The Prisoner Litigation Reform Act (“PLRA”) provides, in part, that if a prisoner has had
three prior cases dismissed as frivolous, malicious, or for failure to state a claim for which relief
may be granted, the prisoner may not proceed in forma pauperis but must pay up-front all filing
fees for his subsequent suits.1 28 U.S.C. § 1915(g); see also Blakely v. Wards, 738 F.3d 607,
609 (4th Cir. 2013), as amended (Oct. 22, 2013). Plaintiff has had the following civil actions

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There is an exception to this rule, which does not apply here. See 28 U.S.C. § 1915(g) (West).

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dismissed as frivolous, malicious, and/or for failure to state a claim for which relief may be
granted : Jones v. Westbrook, et al., No. 1:13-cv-155-FDW (W.D.N.C. Apr. 22, 2014) (failure
to state a claim); Jones v. Norman, et al., No. 1:13-cv-67-RJC (W.D.N.C. Mar. 25, 2013)
(failure to state a claim); Jones v. Butler, et al., No. 5:05-ct-680-H (E.D.N.C. Dec. 5, 2005)
(frivolous).
The PLRA “three-strikes” rule was enacted to bar prisoners, like Plaintiff, who have filed
prior frivolous litigation in a federal court, from pursuing certain types of federal civil litigation
without prepayment of the filing fee. To avoid application of 28 U.S.C. § 1915(g), a prisoner
may prepay the filing fee in full.
Plaintiff has not prepaid the filing fee, and he may not proceed in form pauperis, see §
1915(g). Consequently, the Court will dismiss the Complaint without prejudice; Plaintiff may
refile his Complaint after he has prepaid the filing fee in full.
IT IS, THEREFORE, ORDERED that:
1. Plaintiff’s Motion to proceed in forma pauperis (Doc. No. 2) is DENIED pursuant
to 28 U.S.C. § 1915(g); and
2. Plaintiff's Complaint (Doc. No. 1) is DISMISSED without prejudice. See id.
Signed: July 5, 2017

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