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Johnson v. Dep't of Veterans Affairs

August 29, 2007

DWAYNE JOHNSON, PETITIONER,
v.
DEPARTMENT OF VETERANS AFFAIRS ET AL., RESPONDENTS.



The opinion of the court was delivered by: Reggie B. Walton United States District Judge

MEMORANDUM OPINION

In this action brought pro se, petitioner is a Texas prisoner who was granted leave to proceed in forma pauperis (IFP) contemporaneously with the assignment of this case to the undersigned judge. See Order of May 4, 2007 (granting leave to proceed IFP). Petitioner seeks a writ of mandamus to compel the Board of Veterans Appeals to enforce a 30 percent disability compensation rating of him that was determined more than 20 year ago but has since been reduced. See Compl.¶¶ 6, 28.

Respondents move to dismiss the complaint [Dkt. No. 8] on the ground, among others, that the petitioner is barred from proceeding in forma pauperis in federal court by the so-called three-strike provision codified at 28 U.S.C. § 1915(g) (2006).*fn1 The Court agrees and therefore will grant respondents' motion, vacate the IFP order, but stay dismissal of the case to allow time for petitioner to pay the $350 filing fee applicable to civil actions.*fn2

The applicable provision states 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 . . . 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. 28 U.S.C. § 1915(g). Respondents rightly assert that at least four of petitioner's previous actions were dismissed as frivolous, malicious or for failure to state a claim upon which relief may be granted. Federal Respondents' Statement of Material Facts as to Which There is No Genuine Issue [Dkt. No. 8] ¶ 14; see Dkt. No. 11, Resp't Exhibits ("Ex.") 3, 4, 5, 7, 8. See also Johnson v. Johnson, 73 Fed.Appx. 79 (5th Cir., June 24, 2003) (dismissing appeal as frivolous and finding that petitioner "has accumulated four 'strikes' under 28 U.S.C. § 1915(g)") (citations omitted).*fn3

Petitioner has not alleged that he is facing imminent danger of serious physical injury, nor could he reasonably make such a claim, where the underlying complaint has nothing to do with the conditions of his confinement. See Ibrahim v. District of Columbia, 463 F.3d 3, 6 (D.C. Cir. 2006) ("In determining whether [a plaintiff] qualifies [under the imminent danger exception], we look to the complaint. . . .") (citation omitted).

For the foregoing reasons, respondents' motion to dismiss the complaint based on the three-strike provision of 28 U.S.C. ยง 1915(g) is granted. Dismissal of ...


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