UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ARI BAILEY,
Piainrirf,
civil Acrion No. 14-0716 (RJL)

V.

BUREAU oF PRisoNs, er ai.,

FILED

Defendants.
MA¥ oi gina

;L\ Clerk, U.S. Dlst\’lci & Ball|mlpby
MEMORA DUM ()PINION Courts for the Dlstrlct of columbia
 2016) [i)i<r. #43]

This matter is before the Court on Defendants’ Motion to Dismiss [Dkt. #43]. For

\é\J\Jé\_/\/€\/\_/\/

the reasons stated below, the motion will be granted.

Generally, a prisoner plaintiff is required to pay a filing fee in full when he files
his complaint See 28 U.S.C. §§ l9l4(a), l9l5(b)(l). Pursuant to the Prison Litigation
Reform Act ("PLRA"), "[a] prisoner who qualifies for [z`n forma pauperis] status . . .
need not pay the full filing fee at the time he brings suit," and instead he is allowed to
"pay the filing fee in installments over time." Asemcmz` v. U.S. Citizenship & Immz`grcitz`on
Servs., 797 F.3d 1069, 1072 (D.C. Cir. 2015) (citations omitted). However, certain

prisoners cannot qualify for in forma pauperis status under the PLRA’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

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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.

Id. (quoting 28 U.S.C. § l9l5(g)); see 28 U.S.C. §§ l9l5(e)(2)(B), l9l5A(b). This
plaintiff has accumulated three strikes.l See Bailey v. Fulwood, 945 F. Supp. 2d 62
(D.D.C. 2013) (dismissing for failure to state claim under Ex Post Facto Clause), ayj"d,
793 F.3d 127 (D.C. Cir. 2015), pet for cert.fi`lea’, No. 15-1217 (U.S. Mar. 29, 2016);
Bailey v. United Stales, No. l3-cv-6 (E.D. Ky. July lO, 20l3) (dismissing complaint with
prejudice for failure to state a claim under 28 U.S.C. § l9l5(e)(2)(B)(ii)); Bailey v. Ala’er,
No. O3-cv-l425 (W.D. La. Oct. 19, 2004) (dismissing claims against Houston prison
officials as frivolous under § l9l5A prior to transfer from S.D. Tex., and dismissing

remaining Bz`vens claims with prejudice for failure to state a claim).

Under these circumstances, plaintiff may proceed in forma pauperis only if he is
"under imminent danger of serious physical injury." 28 U.S.C. § 19l5(g). The Court
"asses[es] the alleged danger at the time [the plaintiff_| filed his complaint," Mz`tchell v.
Fea’. Bureau ofPrz`sons, 587 F.3d 415, 420 (D.C. Cir. 2()09) (citing Ibrahz`m v. Districz‘ of

Columbia, 463 F.3d 3, 6 (D.C. Cir. 2()06)), and in so doing "construe[s] his complaint

' Plaintiff disputes one dismissal, see Bailey v. Harris, No. 5;09-cv-l65 (M.D. Fla. Apr. 10, 2013), arguing that a
dismissal for failure to exhaust administrative remedies is not a strike for purposes of § l9l S(g). See Pl.’s Mem. in
Opp’n to Doc #43 Mot. to Dismiss Pursuant to Judicial Estoppel [ECF No. 46] at 2. "Because there is no
categorical answer to the question whether failure to exhaust administrative remedies counts as failure to state a
claim for Rule l2(b)(6) purposes, the question likewise has no categorical answer under section l9l5(g)[.]"
Thompson v. DEA, 492 F.3d 428, 438 (D.C. Cir. 2()07). Even ifthe Court were to eliminate this case from
consideration, plaintiff still had accumulated three strikes prior to the filing of the instant civil action, and he has
acquired an additional strike since. See Bailey v. District of Columbz`a, No. 15-cv-779 (D.D.C. May 26, 2015)
(dismissing under 28 U.S.C. § l9l5A(b) for failure to state a claim).

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liberally and accept[s] its allegations as true." Id. None of the complaint’s factual
allegations demonstrate that plaintiff is in imminent danger of serious physical injury,

and therefore he fails to qualify for the imminent danger exception.

The Court concludes that plaintiff was not eligible to proceed in forma pauperis at
the time he filed this civil action. Defendants’ motion to dismiss will be granted, and the

Court will dismiss this action without prejudice An Order is issued separately.

  

United States Distr1c udge

