“[A] dismissal of a prisoner’s lawsuit for failure to state a claim, or as frivolous or malicious, is commonly referred to as a strike.”
How later courts described this case
- “[A] dismissal of a prisoner’s lawsuit for failure to state a claim, or as frivolous or malicious, is commonly referred to as a strike.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
MILTON BROWN, )
)
Plaintiff, )
)
v. ) Civil Action No. 20-0874 (UNA)
)
TIMOTHY S. FISHER, )
)
Defendant. )
_________________________________________ )
MEMORANDUM OPINION
This matter is before the Court on Plaintiff’s application to proceed in forma pauperis. The
Court will deny the application because Plaintiff has run afoul of the Prison Litigation Reform
Act’s “three strikes” rule:
In no event shall a prisoner bring a civil action or appeal a judgment
in a civil action or proceeding under this section if the prisoner has,
on 3 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 is frivolous, malicious, or
fails to state a claim upon which relief may be granted, unless the
prisoner is under imminent danger of serious physical injury.
28 U.S.C. § 1915(g); see Fourstar v. Garden City Grp., Inc., 875 F.3d 1147, 1149 (D.C. Cir. 2017)
(“[A] dismissal of a prisoner’s lawsuit for failure to state a claim, or as frivolous or malicious, is
commonly referred to as a strike.”). Plaintiff has accumulated far more than three strikes. Brown
v. Kiser, No. 3:19-CV-282 (E.D. Va. May 10, 2019) (denying in forma pauperis application under
28 U.S.C. § 1915(g)), appeal dismissed, No. 19-6758 (4th Cir. July 19, 2019); see Brown v.
Roberts, No. 3:18-CV-387 (E.D. Va. Aug. 14, 2018) (dismissing complaint with prejudice as
frivolous and malicious); Brown v. Scott, No. 3:18-CV-385 (E.D. Va. July 31, 2018) (dismissing
1
complaint with prejudice as frivolous); Brown v. Morgan, No. 3:18-CV-386 (E.D. Va. June 13,
2018) (dismissing complaint with prejudice as frivolous and malicious); Brown v. Fisher, No.
3:18-CV-221 (E.D. Va. June 19, 2018) (dismissing complaint with prejudice as frivolous and
malicious); see also Brown v. Smith, No. 3:18-CV-225 (E.D. Va. June 12, 2018) (noting that
Plaintiff had filed nearly 30 civil actions in the Eastern District of Virginia “advanc[ing] demands
for relief based on his status as a Moorish American”).
Under these circumstances, Plaintiff may proceed in forma pauperis only if he is “under
imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). The Court “assess[es] the
alleged danger at the time [Plaintiff] filed his complaint,” Mitchell v. Fed. Bureau of Prisons, 587
F.3d 415, 420 (D.C. Cir. 2009), and in so doing “construe[s] his complaint liberally and accept[s]
its allegations as true,” id. (citing Ibrahim v. District of Columbia, 463 F.3d 3, 6 (D.C. Cir. 2006)).
Plaintiff alleges no facts at all suggesting that he is in imminent danger of serious physical injury.
Therefore, he fails to qualify for the “imminent danger” exception.
Accordingly, the Court DENIES Plaintiff’s application to proceed in forma pauperis and
DISMISSES the complaint and this civil action without prejudice. If Plaintiff wishes to proceed
with this action, he may file a motion to reopen the case and he must pay the filing fee in full. An
Order is issued separately.
DATE: April 15, 2020 /s/
AMY BERMAN JACKSON
United States District Judge
2