Sowell v. The Twin Valley Behavioral Healthcare Facility, et al.

Summary

A United States Magistrate Judge recommends denying Salvatore J. Sowell’s motion to proceed in forma pauperis under the Prison Litigation Reform Act’s three-strikes provision. The recommendation concludes that Plaintiff has not plausibly alleged imminent danger of serious physical injury and recommends requiring payment of the full filing fee within thirty days, while certifying that an appeal would not be taken in good faith.

Holdings

1. A prisoner who has brought three or more prior federal actions dismissed as frivolous, malicious, or for failure to state a claim may not proceed in forma pauperis unless the imminent-danger exception applies. The magistrate judge determined that Sowell had at least three qualifying strikes.
2. The plaintiff did not satisfy the imminent-danger exception because neither the complaint nor the other filings plausibly alleged that he was under an existing danger of serious physical injury when he filed the action.
3. The Report and Recommendation recommended that Sowell be required to pay the full $405 filing fee within thirty days after the district court's adoption of the recommendation, with dismissal to follow if he failed to pay timely.

Questions Presented

1. Whether Plaintiff was barred by the Prison Litigation Reform Act's three-strikes provision from proceeding in forma pauperis.
2. Whether Plaintiff sufficiently pleaded that he was under imminent danger of serious physical injury so as to invoke the exception to 28 U.S.C. § 1915(g).
3. Whether the court should certify under 28 U.S.C. § 1915(a)(3) that an appeal from an order adopting the recommendation would not be taken in good faith.

Disposition

other