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Borden v. Sexton

United States District Court, D. Massachusetts

November 15, 2019

JASON DEAN BORDEN, Plaintiff,
v.
OFFICER SEXTON, FEDERAL BUREAU OF PRISONS, FEDERAL PRISON INDUSTRIES, UNITED STATES OF AMERICA, and UNICOR, Defendants.

          ORDER

          M. PAGE KELLEY, UNITED STATES MAGISTRATE JUDGE

         Pro se plaintiff Jason Dean Borden (“Borden”) is a prisoner serving a sentence at Federal Medical Center - Devens. On November 6, 2019, Borden filed this action without paying the $400 filing and administrative fee, or seeking leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. 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. Because Borden 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] In addition, a prisoner must be denied in forma pauperis status if such prisoner has “on three or more prior occasions, an action . . . dismissed on the grounds that it was frivolous, malicious, or fails 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, ” such prisoner may only proceed in forma pauperis if he is “under imminent danger of serious physical injury.” Id.

         Here, Borden appears to be a “three-strikes” litigant. Borden has filed numerous cases in the United States courts, at least three of which have been dismissed. The Court identifies two actions where dismissal was for failure to state a claim upon which relief can be granted and one action which was dismissed as frivolous. See Borden v. Bullock, Civ. No. 1:09CV-P114-R, Order, ECF No. 6 (W.D. Ky. Feb. 25, 2010) (Russell, J.) (dismissing action “with prejudice for failure to state a claim on which relief may be granted within the meaning of 28 U.S.C. § 1915A(b)(1).”); Borden v. U.S. District Court, Western District of Kentucky, Civ. No. 1:08-cv-P132-M, Order, ECF No. 22 (W.D. Ky. Sept. 9, 2009) (McKinley, J.) (dismissing action “as frivolous pursuant to 28 U.S.C. §1915A(b)(1) with prejudice.”); and Borden v. Watt et al., Civ. No. 1:08CV-P167-M, Order, ECF No. 22 (W.D. Ky. Aug. 28, 2009) (dismissing action “with prejudice pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state a claim upon which relief may be granted.”). Copies of these orders are attached. See 28 U.S.C. § 1915(g). There are no allegations of imminent danger of serious physical injury.

         Accordingly, Borden shall, by December 4, 2019, either: (1) pay the filing and administrative fee of $400, or (2) file a motion to proceed in forma pauperis, along with his prison account statement. To the extent Borden files a motion to proceed in forma pauperis, he shall show cause why such status is not barred by 28 U.S.C. § 1915(g). 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. Failure to comply with this Order will likely result in dismissal of this action by a United States District Judge.

         So Ordered.

         UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY AT BOWLING GREEN

         JASON DEAN BORDEN PLAINTIFF

         v.

         LINDA DIXON BULLOCK DEFENDANT

         CIVIL ACTION NO. 1:09CV-P114-R

         ORDER

         For the reasons set forth in the Memorandum Opinion entered this date and being otherwise sufficiently advised, IT IS ORDERED that Plaintiffs claims are DISMISSED with prejudice for failure to state a claim on which relief may be granted within the meaning of 28 U.S.C. § 1915A(b)(1).

         There being no just reason for delay in its entry, this is a final Order.

         The Court certifies that an appeal in forma pauperis would not be taken in good faith for the reasons set forth in the ...


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