United States District Court, D. Montana, Helena Division
GREGORY L. WALLACE, Plaintiff,
BENJAMIN BOULEY, ROBERT SPOJA, SILVER BOW COUNTY ATTORNEY SHEA, and MONTANA STATE PRISON INFIRMARY, Defendants.
FINDINGS AND RECOMMENDATIONS OF UNITED STATES
Johnston United States Magistrate Judge
Gregory Wallace, a state prisoner proceeding without counsel,
submitted a nearly incoherent document which was liberally
construed as a civil complaint. (Doc. 1.) On January 31,
2019, the Court issued an Order requiring Mr. Wallace to
either pay the statutory filing fee of $400.00 or file a
motion to proceed in forma pauperis under 28 U.S.C. §
1915. (Doc. 2.) In addition, Mr. Wallace was advised that his
filing was subject to the three-strikes provision of 28
U.S.C. § 1915(g) because he had on three 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 was frivolous,
malicious, or failed to state a claim upon which relief may
be granted. He was advised that if he filed a motion to
proceed in forma pauperis he had to file a brief setting
forth sufficient facts to show that he is in imminent danger
of serious physical injury. He was advised that a failure to
provide such information would result in a recommendation
that his motion to proceed in forma pauperis be denied
pursuant to 28 U.S.C. § 1915(g) and that the case would
be dismissed. (Doc. 2.)
February 27, 2019, Mr. Wallace filed a motion to proceed in
forma pauperis with a supporting account statement (Doc. 3)
and a Complaint form (Doc. 4). Mr. Wallace alleges violations
of the Fifth and Sixth Amendments to the United States
Constitution occurring between March 3, 2012 and February 18,
2019. But he provides no facts regarding his claims, he
simply refers to his direct appeal in DC: 11-0495(11-17523).
In the injury section of the Complaint form, Mr. Wallace
states: “See May 5, 2012 to May 11, 2016 Infirmary H
Pyloria 1 Blood contamination caused by retaliation of
Montana State Prison Unit Management and Infirmary
Administrative actors.” (Doc. 4 at 6-7.)
Wallace's allegations are insufficient to show that he is
in imminent danger of serious physical injury. To meet this
exception under § 1915(g), the complaint must
“make[ ] a plausible allegation that the prisoner faced
‘imminent danger of serious physical injury' at the
time of filing.” Andrews v. Cervantes, 493
F.3d 1047, 1055 (9th Cir. 2007) (quoting §
1915(g)). The “threat or prison condition [must be]
real and proximate.” Ciarpaglini v. Saini, 352
F.3d 328, 330 (7th Cir. 2003) (quoting Lewis v.
Sullivan, 279 F.3d 526, 531 (7th Cir. 2002)). The
allegations must be “specific or credible.”
Kinnell v. Graves, 265 F.3d 1125, 1128 (10th Cir.
only possible allegation of physical injury in Mr.
Wallace's Complaint is in the injury section where Mr.
Wallace complains of blood contamination occurring between
May 5, 2012 and May 11, 2016. Mr. Wallace's Complaint was
filed January 4, 2019. There is simply no basis to find that
events which occurred two and a half years prior to the
filing of the Complaint established an imminent danger of
serious physical injury at the time Mr. Wallace filed suit.
Wallace has exceeded the three “strikes” allowed
by the Prison Litigation Reform Act to a prisoner attempting
to proceed in forma pauperis in a federal civil lawsuit. As
such, he cannot proceed in forma pauperis in the instant case
without showing that he qualifies for the “imminent
danger of serious physical injury” exception of 28
U.S.C. § 1915(g). Mr. Wallace does not provide any
factual information sufficient to establish that he is in
“imminent danger of serious physical injury.” The
Court gave Mr. Wallace an opportunity to provide factual
information to establish that he is in “imminent danger
of serious physical injury” and he failed to do so.
the Court finds that Mr. Wallace was not under imminent
danger of serious physical injury at the time he filed his
Complaint. As such, his motion to proceed in forma pauperis
should be denied.
Wallace is not entitled to a fourteen-day period to object.
See Minetti v. Port of Seattle, 152 F.3d 1113, 1114
(9th Cir. 1998) (per curiam). No motion for reconsideration
will be entertained.
the Court issues the following:
Wallace's Motion to Proceed in Forma Pauperis (Doc. 3)
should be DENIED.
matter should be closed if Mr. Wallace fails to pay the
$400.00 filing fee within 21 days of the adoption of ...