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Skandha v. Ferreira

United States District Court, D. Massachusetts

September 29, 2017

BODHISATTVA SKANDHA, Plaintiff,
v.
JAMES FERREIRA, STEPHANIE COLLINS, SEAN MEDEIROS, KYLE PAIVA, and THOMAS TURCO, III, in their official and individual capacities, Defendants.

          MEMORANDUM AND ORDER

          F. Dennis Saylor IV United States District Judge.

         I. Introduction

         For the reasons set forth below, plaintiff's motion for leave to proceed in forma pauperis will be DENIED without prejudice, and he will be ORDERED, by October 20, 2017, to either (1) pay the $400 filing and administrative fees or (2) file a renewed motion for leave to proceed in forma pauperis (including a prisoner account statement) and show cause why in forma pauperis status is not barred pursuant to 28 U.S.C. § 1915(g).

         II. Background

         On August 14, 2017, Bodhisattva Skandha, who is incarcerated at MCI Norfolk, filed a self-prepared, verified complaint alleging that defendants failed to provide him car-only transportation, as opposed to van transportation, to court appointments. He alleges that historically he had, at some point, a prescription for car-only transportation, and that next month he has a parole hearing that will require transportation. He also alleges that he has future unspecified court and medical appointments. Along with his complaint, Skandh0a filed a motion to proceed in forma pauperis.

         III. Discussion

         Skandha's motion will be denied without prejudice. A party bringing a civil action must either (1) pay the $350 filing fee and the $50 administrative fee[1], see 28 U.S.C. § 1914(a), or (2) seek leave to proceed without prepayment of the filing fee, see 28 U.S.C. § 1915 (proceedings in forma pauperis). Where the plaintiff is a prisoner, a motion for waiver of prepayment of the filing fee must be accompanied by “a certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint . . . obtained from the appropriate official of each prison at which the prisoner is or was confined.” 28 U.S.C. § 1915(a)(2).[2] Skandha recently filed a prison account statement, but only for the five-month period preceding the filing of the complaint. Therefore, the motion will be denied without prejudice.

         In addition, a prisoner must be denied in forma pauperis status if he has had, on three or more prior occasions, an action or appeal dismissed on the ground that it was frivolous, malicious, or failed to state a claim upon which relief can be granted (the so-called “three strike” rule). 28 U.S.C. § 1915(g). If a prisoner has “three strikes, ” he may only proceed in forma pauperis if he is “under imminent danger of serious physical injury.” Id. Skandha is a “three-strikes” litigant.[3] He is therefore ineligible for in forma pauperis status unless, at the time of the filing of the complaint, he was “under imminent danger of serious physical injury.” See 28 U.S.C. § 1915(g); Malik v. McGinnis, 293 F.3d 559, 562-63 (2d Cir.2002) (holding that “imminent danger” exception only applies to danger existing at the time the complaint is filed”).

         Here, Skandha makes no attempt to address his “three strikes” status or whether, at the time of the filing of the complaint, he was in “imminent danger of serious physical injury” for purposes of 28 U.S.C. § 1915(g) (emphasis supplied). Skandha's verified complaint describes an apparently disputed “avoid van” prescription renewal that was denied over a year ago. He does not appear to allege that he has requested, nor has been denied a request, for a current accommodation for car transportation to his upcoming parole hearing or future unspecified court hearings and medical appointments. The fact that Skandha has been required to use the prison van apparently more than a year ago (although this is not entirely clear from the verified complaint), without more, is insufficient to describe imminent danger of serious physical harm to afford relief from the “three strikes” rule.

         IV. Conclusion

         Accordingly, for the foregoing reasons, 1. Plaintiff's motion to proceed in forma pauperis is DENIED without prejudice.

         2. Plaintiff shall, by October 20, 2017, either (1) pay the filing and administrative fee of $400 or (2) file a renewed motion to proceed in forma pauperis, along with his prison account statement. To the extent plaintiff files a renewed motion to proceed in forma pauperis, plaintiff shall show cause why such status is not barred by 28 U.S.C. § 1915(g), specifically addressing whether and how, at the time he filed his verified complaint, he was in imminent danger of serious physical injury.

         3. For the convenience of litigants, this Court uses a form application to seek leave to proceed in forma pauperis. The clerk is directed to provide plaintiff with the form Application to Proceed in District Court Without Prepaying Fees or Costs.

         4. The clerk shall also send a copy of this Procedural Order to the Treasurer's Office at the prison facility in which plaintiff is incarcerated, in order to facilitate any request by the plaintiff for his certified prison account statement. The Court requests that the Treasurer's Office include in any prison account statement the plaintiff's average monthly deposits for the six-month ...


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