Myles, Samuel v. Gupta, Ravi et al

Filing 88

ORDER that plaintiff Samuel Haywood Myles shall have until December 18, 2015 to SHOW CAUSE why his in forma pauperis status should not be revoked. If plaintiff fails to do so, his in forma pauperis status will be revoked and his remaining claims will be dismissed without prejudice unless he can pay the balance of the $400 filing fee within 21 days. Signed by District Judge Barbara B. Crabb on 12/3/2015. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - SAMUEL HAYWOOD MYLES

ORDER

Plaintiff,

14-cv-661-bbc

v.
RAVI GUPTA, CHRISTINA KANNEL
and UNITED STATES,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Plaintiff Samuel Haywood Myles, a prisoner at Milan Federal Correctional Institution
in Milan, Michigan, is proceeding on negligence claims arising under the Federal Tort Claims
Act and an Eighth Amendment claim pursuant to Bivens v. Six Unknown Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971). When plaintiff filed his suit, he was granted
leave to proceed in forma pauperis and without prepaying the $400 filing fee typically
required of litigants before filing a civil lawsuit in this court. However, under 28 U.S.C. §
1915(g), a prisoner cannot proceed in forma pauperis when on three or more prior occasions
he has filed lawsuits that have been “dismissed on the grounds that [they were] frivolous,
malicious, or fail[ed] to state a claim upon which relief may be granted[.]” A dismissal on
such grounds is commonly referred to as a “strike.”
It has come to the court’s attention that this case is the eleventh lawsuit that plaintiff
has filed while incarcerated. Of these eleven lawsuits, it appears that at least five of them

1

have been dismissed as frivolous or for failing to state a claim upon which relief can be
granted. These five lawsuits include the following:
•

Myles v. United States of America, 00-cv-3298 (D. Kan.)(granting defendants’
uncontested motion to dismiss, or in the alternative, motion for summary judgment);

•

Myles v. Barber, 06-cv-00097 (N.D. W.Va.)(First Amendment retaliation claim
dismissed for failure to state a claim upon which relief may be granted);

•

Myles v. Henson, 06-cv-02281 (C.D. Cal.)(claim related to the loss of his personal
property from prison hobby shop dismissed as “legally and/or factually patently
frivolous”);

•

Myles v. Henson, 06-cv-05836 (C.D. Cal.)(claim related to the loss of his personal
property from prison hobby shop dismissed as “legally and/or factually patently
frivolous”); and

•

Myles v. Wallace, 07-cv-00043 (N.D. W.Va.)(First Amendment and due process
claims dismissed for failure to state a claim upon which relief may be granted).
Given the nature of these dismissals, I will give plaintiff an opportunity to show cause

why his in forma pauperis status should not be revoked. To avoid revocation of his status,
plaintiff must show that at least three of the suits listed above should not be construed as
“strikes” under 28 U.S.C. § 1915(g). If plaintiff is unable to make such a showing, the court
will have to dismiss his case without prejudice unless he can pay the balance of the $400 filing
fee within 21 days after his pauper status is revoked. Finally, plaintiff should know that I will
not rule on his outstanding requests for assistance with the recruitment of counsel until he
demonstrates either that he should be allowed to continue to proceed in forma pauperis or
he pays the filing fee in full.

2

ORDER
IT IS ORDERED that plaintiff Samuel Haywood Myles shall have until December 18,
2015 to SHOW CAUSE why his in forma pauperis status should not be revoked. If plaintiff
fails to do so, his in forma pauperis status will be revoked and his remaining claims will be
dismissed without prejudice unless he can pay the balance of the $400 filing fee within 21
days.
Entered this 3d day of December, 2015.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

3