United States District Court, District of Columbia
S. CHUTKAN, UNITED STATES DISTRICT JUDGE.
October 4, 2016, Plaintiff filed his complaint in the United
States District Court for the Central District of California.
The case was transferred to this district on May 11, 2017.
This matter has come before the court on Defendants'
Motion to Reconsider and Vacate the Grant of In Forma
Pauperis Status to Plaintiff. For the reasons discussed
below, Defendant's motion is GRANTED.
a plaintiff must pay a filing fee in full. See 28
U.S.C. § 1914(a). The Court may grant a plaintiff in
forma pauperis status by “authoriz[ing] the
commencement . . . of [the] suit . . . without prepayment of
fees” if plaintiff shows he is unable to pay them.
Id. §1915(a)(1). Pursuant to the Prison
Litigation Reform Act (“PLRA”), in forma
pauperis status does not relieve a prisoner plaintiff of
his obligation to pay the filing fee in full. Asemani v.
U.S. Citizenship & Immigration Servs., 797 F.3d
1069, 1072 (D.C. Cir. 2015). Rather than “pay the full
filing fee at the time he brings suit . . . he can pay the
filing fee in installments over time.” Id.
(citations omitted). However, certain prisoners cannot
qualify for in forma pauperis status under the
PLRA's “three strikes” rule:
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 or detained in any facility, 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.
Id. (quoting 28 U.S.C. § 1915(g)); see
Fourstar v. Garden City Grp., Inc., No. 15-5049, 2017
U.S. App. LEXIS 23950, at *1 (D.C. Cir. Nov. 28, 2017)
(“[A] dismissal of a prisoner's lawsuit for failure
to state a claim, or as frivolous or malicious, is commonly
referred to as a strike.”).
argue that Plaintiff has accumulated three strikes, based on
the dismissal of three civil actions filed in the United
States District Court for the Northern District of Texas.
See Macias-Ochoa v. Mendez, No. 5:16-CV-00108 (N.D.
Tex. June 24, 2016) (dismissing with prejudice as frivolous);
Macias-Ochoa v. Medford, No. 5:13-CV-00213 (N.D.
Tex. Aug. 4, 2014) (dismissing with prejudice for failure to
state a claim); Macias v. Dixon, No. 5:13-CV-00160
(N.D. Tex. May 14, 2014) (dismissing with prejudice as
frivolous and for failure to state a claim).
acknowledges the three cases in the Northern District of
Texas. However, he attributes their disposition to “the
district judge who in part took sides with the defendants and
dismissed [the] complaints even though [plaintiff] was forced
to pay . . . the filing fees in for the court to screen the
complaint.” (Pl.'s Resp. in Opp'n to Def.'s
Mot. to Recons. and Vacate the Grant of In Forma Pauperis
Status to Pl. and Supporting Mem. of P. (“Pl.'s
Opp'n”) at 1.) He considers Defendants' motion
an effort to distract the court's attention from
Defendants' failure to file a timely response to his
Complaint. (See id. at 2.) Plaintiff then discusses
the court's ‘“gate keeping' role”
under the PLRA to screen a prisoner's complaint
“for the purpose of determining whether there are
certain grounds for dismissal.” (Id.) He
states that “[t]he instant complaint was
‘properly' screened by the U.S. District Judge in
California in [accordance] with the PLRA, ”
(id., ) and argues that Defendants now should not be
allowed to “erroneously contend the California Judge
was mistaken in granting [plaintiff in forma
pauperis status], ” (id. at 5.)
of a plaintiff's in forma pauperis status and
the screening of his complaint are separate functions. Here,
Defendants are not asking the court to screen Plaintiff's
Complaint a second time. Their motion pertains only to
Plaintiff's eligibility to proceed in forma
pauperis under 28 U.S.C. § 1915(g). Based on the
court's independent evaluation of the prior dismissals
cited by Defendants, see Fourstar, 2017 U.S. App.
LEXIS 23950, at *11-*12, the court concludes that each
dismissal is “based on a court's determination that
the underlying action . . . is ‘frivolous . . . or
fails to state a claim upon which relief may be
granted.'” Freeman v. Lee, 30 F.Supp.2d
52, 54 (D.D.C. 1998) (quoting 28 U.S.C. § 1915(g)). The
court therefore concludes that Plaintiff has accumulated
these circumstances, Plaintiff may proceed in forma
pauperis only if he “is under imminent danger of
serious physical injury.” 28 U.S.C. § 1915(g). The
court “assess[es] . . . danger at the time [Plaintiff]
filed his complaint and thus look[s] only to the documents
attesting to the facts at that time, namely his complaint and
the accompanying motion for [in forma pauperis]
status.” Mitchell v. Fed. Bureau of Prisons,
587 F.3d 415, 420 (2009); see Pinson v. Samuels, 761
F.3d 1, 4 (2014). Plaintiff's claims arise from the
conditions of his confinement at a correctional facility in
Texas where he was held from August 18, 2013 to November 11,
2013. (Compl. at 1.) Even if the Court were to assume that
Plaintiff adequately alleged danger of serious injury, it
cannot be said that the danger was imminent: by the time
Plaintiff filed his Complaint in California, approximately
three years had passed and Plaintiff had been transferred to
a federal penitentiary in California. The court concludes
that Plaintiff does not qualify for the imminent danger
Motion to Reconsider and Vacate the Grant of In Forma
Pauperis Status to Plaintiff, ECF No. 16, is granted. Rather
than dismiss the Complaint at this juncture, the court
revokes plaintiff's in forma pauperis status and
will permit him to pay the fee in full within thirty
days. See, e.g., Matthews v. FBI, 251
F.Supp.3d 257, 264 (D.D.C. 2017).
Order is issued separately.
 Review of the docket reveals that
plaintiff already has paid a partial filing fee of $19,
leaving an ...