Dylan S. Corral v. Owens

Summary

The magistrate judge recommends dismissing without prejudice a prisoner’s 42 U.S.C. § 1983 action because the plaintiff was subject to the three-strikes bar under 28 U.S.C. § 1915(g), did not allege imminent danger, failed to elect whether to proceed or voluntarily dismiss, and did not pay the filing fee. The findings and recommendations advise that objections may be filed within fourteen days.

Holdings

1. A prisoner with three qualifying strikes may proceed without prepaying the filing fee only upon showing that he is under imminent danger of serious physical injury; plaintiff made no such showing and therefore was required to pay the filing fee.
2. Dismissal without prejudice was recommended because plaintiff did not pay the required filing fee, elect whether to proceed or voluntarily dismiss, or otherwise respond to the court's order.

Questions Presented

1. Whether plaintiff was barred by 28 U.S.C. § 1915(g) from proceeding without prepayment of the filing fee because he had three strikes and did not show imminent danger of serious physical injury.
2. Whether the action should be dismissed without prejudice after plaintiff failed to pay the filing fee or respond to the court's election order.

Disposition

remanded