Disch v. Braun

Filing 14

ORDER by Magistrate Judge Charles S. Miller, Jr. denying 13 Motion to Remove the Statutory Filing Fee. (BG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHWESTERN DIVISION
Michael F. Disch,
Plaintiff,
vs.
Colby Braun,
Defendant.

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ORDER

Case No. 1:15-cv-087

Plaintiff is an inmate at the North Dakota State Penitentiary. He initiated the above-entitled
action on June 30, 2015, with the submission of an application to proceed in forma pauperis along
with a petition for habeas corpus relief pursuant to 28 U.S.C.§ 2241. He subsequently elected to
convert this matter to a civil rights action. The court proceeded accordingly, granting plaintiff leave
to proceed in forma pauperis and ordering him to pay the civil filing fee in installments as mandated
by 28 U.S.C. § 1915(b)(2).
On August 25, 2015, the court issued an order dismissing the above entitled action without
prejudice pursuant to 28 U.S.C. § 1915(A). On December 8, 2015, plaintiff filed a “motion to
remove the statutory filing fee imposed in this case.” The basis for the motion is that the court
improvidently granted his request to proceed in forma pauperis as he accumulated three or more
“strikes” under the Prison Ligation Act (“PLRA”) prior to the initiation of the above-entitled action.1

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The Prison Litigation Reform Act (PLRA) contains what is commonly referred to as the “three strikes”
provision, codified at 28 U.S.C. § 1915(g). This provision effectively bars a prisoner from bringing a civil action or
appealing a judgment in a civil action in forma pauperis if, on three, more prior occasions, he filed an action or appeal
that was dismissed on the grounds that it was frivolous, malicious, or failed to state a claim. See 28 U.S.C. § 1915(g);
see also Jackson v. Auburn Corr. Fac., Nos. 9:07-CV-0651 and 9:07-CV-0659, 2009 WL 1663986 , at *3 (N.D.N.Y.
June 15, 2009) (Peebles, M.J) (“The manifest intent of Congress in enacting this ‘three strikes’ provision was to curb
prison inmate abuses and to deter the filing of multiple, frivolous civil rights suits by prison inmates.”).

1

The court is not inclined to vacate its order granting plaintiff leave to proceed in forma
pauperis. First, plaintiff was granted leave to proceed in forma pauperis pauperis and assessed the
civil filing fee after he elected to convert this matter to a civil rights action. He cannot now avoid
the consequence of his election. Second, he has already received the “benefit” of this court’s review
of his pleadings. His motion (Docket No. 13) is therefore DENIED.
IT IS SO ORDERED.
Dated this 10th day of December, 2015.
/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr., Magistrate Judge
United States District Court

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